THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

RIVERSIDE 


THE  ORIGIN  OF  THE  ENGLISH  CONSTITUTION 


BY  THE  SAME  AUTHOR 

An  Outline  Sketch  of  English  Constitutional  History 
(Second  printing.)    5  x  7^.     Cloth.     208  pages. 


THE  ORIGIN  OF  THE 


ENGLISH  CONSTITUTION 


BY 
GEORGE  BURTON  ADAMS,  LITT.D. 


Enlarged  Edition 


NEW  HAVEN  •  YALE  UNIVERSITY  PRESS 
LONDON  •  HUMPHREY  MILFORD  •  OXFORD  UNIVERSITY  PRESS 

MDCCCCXX 


COPYRIGHT,  1912,  BY 
YALE  UNIVERSITY  PRESS 


First  printed,  1912 
Second  edition,  enlarged,  1920 


TO  THE 
MEMBERS  PAST  AND  PRESENT 

OF  MY 
SEMINARY  IN  ENGLISH  INSTITUTIONS 


PREFACE 

Some  articles  and  portions  of  articles  previously 
printed  have  been  brought  together  in  this  book,  and 
I  am  indebted  to  the  editors  of  the  American  Histori- 
cal Review  and  the  English  Historical  Review  for 
permission  to  republish  them.  To  the  chapters  which 
most  nearly  follow  these  earlier  articles,  some  addi- 
tions have  been  made  in  the  text,  and  especially  in 
the  notes.  Two  introductory  chapters  have  been 
added,  and  the  third  and  the  fifth  are  also  new,  except 
for  some  brief  passages  in  text  and  notes. 

The  purpose  of  the  articles  as  originally  published 
was  to  point  out  the  feudal  origin  of  the  English 
Constitution  in  its  most  distinctive  features,  and 
especially  of  the  limited  monarchy,  and  to  show  that 
the  function  which  the  Great  Charter  actually  per- 
formed in  the  formation  of  the  Constitution  was  to 
effect  the  transition  of  the  fundamental  principle  of 
feudalism  into  the  fundamental  principle  of  the 
modern  Constitution.  The  object  of  the  present  book 
is  the  same.  The  introductory  chapters  are  concerned 
with  the  institutions  of  general  government  before 
any  tendency  towards  change  began  to  appear,  and 
the  third  with  the  changes  of  the  second  half  of  the 
twelfth  century,  in  order  to  make  clear  that  the 
original  government  was  feudal  and  that  the  only 
decisive  changes  which  occur  before  the  date  of  Magna 
Carta  are  not  in  the  direction  of  a  limited  but  of  a 

[vii] 


PREFACE 

more  powerful  monarchy.  The  purpose  of  the  fifth 
chapter  is  to  make  more  evident  the  distinctive 
character  of  the  Great  Charter  in  itself. 

The  tendency  in  the  past  quarter  of  a  century  in 
the  study  of  English  constitutional  history  has  been 
a  growing  recognition  of  the  feudal  character  of  the 
Anglo-Norman  period.  This  may  be  clearly  seen  by 
comparing  the  discussion  of  institutions  in  Pollock 
and  Maitland's  History  of  English  Law  with  the 
opinions  prevailing  a  generation  earlier,  even  with 
those  expressed  in  Stubbs's  Constitutional  History. 
Bishop  Stubbs  represents,  I  am  tempted  to  say,  the 
beginning  of  the  scientific  study  of  the  Constitution. 
This  would,  however,  be  unfair  to  a  number  of 
scholars  whose  work  upon  particular  points  is  of  the 
greatest  value  to  the  later  student.  But  in  the  study 
of  the  Constitution  as  a  whole,  Bishop  Stubbs's  work 
does  form  an  epoch  from  which  all  later  work  must 
date,  and  in  nothing  does  it  mark  a  greater  advance 
than  in  beginning  an  emancipation  from  the  idea  of 
the  unbroken  continuity  of  Saxon  institutions,  so 
strongly  urged  by  Professor  E.  A.  Freeman,  and  in 
bringing  the  royal  government  of  England  into  more 
close  relation  with  contemporary  continental  institu- 
tions. Much  has  been  done  in  the  same  way  since  his 
time.  There  remained,  however,  at  the  close  of  the 
nineteenth  century  three  important  points  still  to  be 
emphasized.  First,  the  need  of  a  more  unreserved 
recognition  of  the  completely  feudal  character  of  the 


PREFACE 

general  government  down  to  the  end  of  John's  reign, 
still  unmodified  by  the  new  developments  of  the  king's 
prerogative.  Second,  the  exact  point  and  manner  of 
the  divergence  of  the  modern  English  Constitution 
from  the  feudal.  Third,  the  specific  service  rendered 
by  the  Great  Charter  in  that  divergence  and  the 
method  in  which  the  service  was  rendered.  As  less 
important  may  be  added,  the  necessity  of  emphasizing 
more  than  is  commonly  done  the  different  effects 
wrought  by  the  Norman  Conquest  in  the  spheres  of 
national  and  of  local  government. 

It  is  hardly  necessary  to  point  out  to  Americans 
that  the  history  of  the  origin  of  the  English  Constitu- 
tion is  our  history  as  much  as  it  is  the  history  of  living 
Englishmen.  Our  institutional  past  until  near  the 
close  of  the  seventeenth  century  is  to  be  found  in 
England  alone.  This  fact  the  history  of  the  seven- 
teenth century  shows  clearly  enough,  for  if  one  will 
study  the  constitutional  innovations  attempted  or 
advocated  during  the  period  of  Puritan  rule,  when 
the  constitutional  life  of  England  abandoned  for  a 
moment  all  connexion  with  the  monarchy,  he  will  see 
how  natural  it  seemed  to  the  nation  to  turn  to  a  sur- 
prising number  of  the  political  expedients  which  in 
our  government  seem  departures  from  the  English 
system.  When  Englishmen  at  home  broke  with  their 
own  institutional  precedents,  and  began  to  make  a 
republic,  it  was  to  things  of  this  kind  that  their  minds 
were  naturally  led,  as  if  they  had  been  trained  to  them. 

[ix] 


PREFACE 

As  to  the  relation  between  cabinet  and  legislature, 
which  appears  to  us  now  a  very  striking  difference, 
we  need  to  remember  that  our  constitution  was  framed 
at  a  time  when  the  workings  of  a  responsible  ministry 
were  not  understood  in  England  itself,  and  could  not 
have  been  described  by  any  one  as  they  were  by 
Macaulay  fifty  years  later.  In  an  especial  way,  and 
this  is  true  quite  independently  of  our  racial  descent 
as  individuals,  the  England  of  those  early  centuries 
wrought  out  for  us  more  truly  than  for  any  other 
people  not  within  the  borders  of  her  Empire,  the  insti- 
tutions of  free  government,  and  we  have  a  peculiar 
right  to  feel  that  in  tracing  the  steps  by  which  they 
were  created  we  are  studying  our  own  history. 

It  would  be  easily  possible  in  a  book  of  this  kind 
to  multiply  footnotes  almost  indefinitely.  I  have  not 
felt  them  to  be  a  necessary  evidence  of  learning,  and 
I  have  deliberately  resisted  the  temptation  to  use  them 
except  where  they  seemed  to  me  really  to  serve  a  need. 
I  have  also  not  reprinted  passages  from  documents 
like  Magna  Carta  which  are  easily  accessible  to  all. 

I  wish  to  acknowledge,  more  explicitly  than  in  my 
dedication,  my  obligation  to  the  members  of  my  his- 
torical seminary  with  whom  many  of  the  problems 
here  discussed  have  been  investigated,  and  from  whose 
kindly  criticism  I  have  profited  much. 

New  Haven, 
March  5,  1912. 


TABLE  OF  CONTENTS 

CHAPTER  I 

General  Introduction  1 

Note  A :  The  Limited  Monarchy  and  the  Constitution        41 

Note  B :  Anglo-Saxon    Feudalism    and    Political    and 
Economic  Feudalism  44 

CHAPTER  II 

Institutional  Introduction  55 

Note  A:  Private  Jurisdiction  and  the  Judicial  Position 
of  the  Common  Freeman  90 

Note  B :  The  Lord's  Cases  in  His  Own  Court  94 

Note  C:  On  Glanvill,  XII.  25  96 

CHAPTER  III 

The  First  Age  of  Change  106 

Note  A :  The  Origin  of  the  Court  of  Common  Pleas  136 

CHAPTER  IV 

The  Germ  of  the  Constitution  144 

Note  A:  Ideal  Feudalism  in  England  186 

Note  B :  Feudal  Legislation  194 

Note  C :  The  Feudal  Contract  203 

CHAPTER  V 

Magna  Carta  207 

Note  A :  The  Documentary  Series  Which  Magna  Carta 
Opens  252 

[xi] 


CONTENTS 

Note  B :  Feudal  Aids  253 

Note  C:  The  Direction  of  Change  in  the  Reissues  of 
the  Charter  256 

Note  D :  Magna  Carta,  Clause  39  262 

CHAPTER  VI 

The  Immediate  Results  of  Magna  Carta  275 

Note  A:  The  Argument  for  the  Barons  311 

CHAPTER  VII 

The  End  of  the  Period  of  Origin  314 

Note  A :  The  Writ  of  1213  339 

CHAPTER  VIII 
Magna  Carta  and  the  Responsible  Ministry  342 

APPENDIX  I 
The  Descendants  of  the  Curia  Regis  373 

APPENDIX  II 
Henry  I.'s  Writ  Regarding  the  Local  Courts  380 

APPENDIX  III 
London  and  the  Commune  385 

Index  401 


[xii] 


ABBREVIATIONS 

A.  H.  R.  American  Historical  Review. 

E.  H.  R.  English  Historical  Review. 

Gesta.  Gesta  Regis  Henrici  Secundi.     Rolls  Series. 

Madox.  Madox's  Exchequer. 

Penn.  Transl.  University  of  Pennsylvania  Translations. 

P.  and  M.  Pollock  and  Maitland's  History  of  English  Law. 

Round  Cal.  Round's    Calendar    of    Documents    Preserved   in 

France. 

Rymer.  Rymer's  Foedera,  Record  Edition.     Vol.  I. 

Stubbs.  Stubbs's  Constitutional  History. 

Stubbs  S.  C.  Stubbs's  Select  Charters. 


THE  ORIGIN  OF  THE  ENGLISH  CONSTITUTION 


CHAPTER  I 

GENERAL  INTRODUCTION 

The  importance  of  the  English  Constitution  in  the 
political  history  of  mankind  is  so  great  that  the  ques- 
tion of  its  origin  is  of  unusual  interest.  The  unani- 
mous judgment  of  the  world  at  the  beginning  of  the 
twentieth  century  is  that  this  is  the  best  system  of 
government  yet  devised.  All  monarchies  which  have 
adopted  a  constitution  have  derived  their  forms  from 
it,  and  the  same  is  true  of  most  republics.  Local 
necessities,  or  local  prejudices,  have  made  the  adop- 
tion in  individual  cases  more  or  less  complete,  or  have 
led  to  variations  from  the  typical  forms,  but  these 
are  hardly  sufficient,  even  in  the  most  extreme  case, 
to  conceal  the  indebtedness.  The  English  Constitu- 
tion has  made  the  circuit  of  the  globe  and  become  the 
common  possession  of  civilized  man.  After  so  many 
centuries  of  experiment,  practical  action,  whatever 
be  the  opinion  of  the  theorist,  unites  to  declare  this 
the  best  result  of  all  experience.  If  this  is  true,  the 
question  from  what  and  how  it  began  to  be  should  be 
considered  one  of  the  greatest  and  most  absorbing  of 
all  historical  studies. 

Some  definition  is,  however,  necessary  for  the  sake 
of  clearness.  By  the  term  constitution,  as  used  above, 

[1] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

is  not  meant  the  whole  system  of  government,  all  the 
organs  of  the  state,  the  whole  political  machinery, 
national  and  local.  What  is  meant  is  the  machinery 
of  a  limited  monarchy,  those  devices  by  which  an  abso- 
lutism, once  existing  in  fact,  can  be  retained  in  form 
and  theory  while  the  real  government  of  the  state  is 
transformed  into  a  democratic  republic.1  It  is  this 
group  of  institutions,  and  those  more  or  less  closely 
connected  with  them,  as  adaptable  to  a  democracy 
which  has  never  known  a  king,  as  to  the  Empire  of 
Russia,  which  we  mean  when  we  say  that  the  English 
Constitution  has  become  the  common  possession  of 
mankind.  And  it  is  this  limited  line  of  institutional 
history  only,  national  and  not  local,  which  I  propose 
to  consider  in  this  book. 

There  is  another  qualification  also  which  I  wish  to 
have  clearly  understood  at  the  outset.  I  am  trying 
to  find  the  beginning  of  the  English  Constitution  in 
the  way  of  forms  and  machinery  only.  It  is  as  a  body 
of  institutions  that  I  wish  to  trace  its  rise.  From  what 
legal  and  constitutional  ideas,  from  what  methods  of 
doing  the  business  of  government,  by  what  changes 
in  those  ideas  and  methods,  was  the  process  of  creation 
carried  on  until  we  can  say  that  the  limited  monarchy 
with  its  characteristic  ideas  and  its  characteristic 
machinery  for  doing  the  work  of  the  state  became 
fixed  in  the  habits  of  the  nation,  this  is  the  general 
problem  which  I  propose.  I  know  very  well,  however, 

!See  note  A  at  the  end  of  the  chapter  (p.  41). 

[2] 


GENERAL  INTRODUCTION 

that  I  am  studying  only  a  portion  of  the  whole  case. 
Racial,  social,  and  economic  influences,  and  others 
very  likely,  had  to  do  with  the  result,  and  no  doubt 
furnished  more  of  the  impelling  force  of  change,  in 
many  instances  at  least,  than  did  anything  that  was 
institutional  merely.  These  I  shall  have  to  leave  to 
others,  who  will  no  doubt  in  their  turn  acknowledge 
that  existing  forms  with  which  the  more  dynamic 
forces  had  to  deal  made  exceedingly  important  con- 
tributions to  the  common  result.2 

2  The  thesis  of  this  book  is  that  this  English  national  constitution,  as 
defined  above,  is  a  direct  outgrowth  of  the  earlier  feudal  constitution  of 
the  state;  that  it  rests  wholly  upon  foundations  that  were  laid  in  the 
feudal  age;  that  the  distinctive  features  which  made  the  English  a  con- 
stitution of  a  new  type  in  the  political  history  of  the  world  came  in  the 
germ  from  feudal  arrangements  and  were  developed  under  the  influence 
of  principles  derived  from  feudal  law.  The  English  limited  monarchy 
of  later  times  could  never  have  been  regarded  as  a  direct  outgrowth  of 
the  Saxon,  non-feudal  state,  as  it  existed  for  instance  under  Cnut, 
except  by  a  preconceived  and  strained  interpretation  of  the  facts  of 
history.  The  whole  drift  of  that  state  was  towards  a  monarchy  of  the 
Carolingian  type  in  which  the  crude  checks  upon  the  sovereign's  will  or 
equally  crude  machinery  for  operating  the  nation's  will,  belonging  to 
the  primitive  German  public  law,  had  either  entirely  disappeared  or 
been  dwarfed  into  insignificance.  To  speak  of  these,  indeed,  as  checks 
upon  the  sovereign's  will  is  to  carry  back  our  conceptions  into  the  earlier 
time  when  they  did  not  exist.  They  were  not  checks  upon  the  sover- 
eign's will  as  such  in  the  Teutonic  constitution.  They  were  rather  sur- 
vivals of  an  earlier  form  of  government  disappearing  before  the  new 
and  rapidly  increasing  monarchical  power.  The  Saxon  monarchy  ad- 
vanced along  this  road  so  much  more  slowly  than  the  Frankish  not  from 
any  greater  devotion  of  the  race  to  liberty,  nor  because  it  possessed 
different  or  better  institutions,  but  mainly  because  one  set  of  influences, 
most  decisive  in  hastening  the  results  on  the  continent,  was  lacking — the 
Roman  survivals,  and  because  no  Saxon  state  had  suddenly  imposed  upon 
it  the  necessity  of  governing  a  wide  territory  with  its  primitive  machinery. 
The  accomplishment  of  such  results  was  made  impossible  in  England  by 

[3] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

The  Norman  Conquest  brought  face  to  face  with 
one  another  two  groups  of  political  institutions  which 
in  their  historical  origins  had  much  in  common,  and 
which  in  some  respects  had  passed  through  common 
phases  of  development.  On  one  side  was  the  Saxon. 
Its  history  had  been  begun  in  England  by  Teutonic 
tribes  from  the  southeastern  shores  of  the  North  Sea. 
Of  their  actual  institutions  before  and  for  a  time  after 
the  Conquest  we  know  almost  nothing,  but  they  seem 
to  have  stood  in  a  stage  of  political  progress  not 
materially  in  advance  of  the  kingless  tribes  whose 
institutions  are  described  in  Tacitus's  Germania.  It 
is  probable  that  the  new  conditions  in  which  the  Con- 
quest placed  them  impelled  them  to  changes  in  the 
direction  of  larger  and  stronger  states.  The  king 
came  into  existence,  charged  it  would  seem  likely,  at 
first,  mainly  with  the  duties  of  a  permanent  war-chief 
in  view  of  the  dangers  constantly  threatening  the 
little  colony  of  invaders.  From  such  a  beginning  his 
power  spread  gradually  over  internal  policy  and 
administration,  and  grew  stronger.  The  increase  of 
the  royal  power  in  the  Saxon  state  seems  to  have  been 
very  slow,  but  it  did  increase.  The  Saxon  monarch 
of  the  eleventh  century  was  far  from  absolute,  or 

the  Norman  Conquest.  It  was  the  thorough  feudalization  of  England 
which  resulted  from  the  Conquest  that  made  the  constitution  possible, 
not  by  establishing  a  strong  monarchy  against  which  primitive  Teutonic 
liberty  reacted  later,  but  by  introducing  with  the  strong  monarchy  a 
new  conception  of  the  relation  of  the  king  to  those  of  his  subjects  who 
in  that  age  constituted  the  nation,  and  who  alone  could  constitute  it,  by 
introducing  the  definite  contract-idea  of  the  feudal  system. 

[4] 


GENERAL  INTRODUCTION 

from  being  able  to  identify  himself  with  the  state,  but 
in  the  hands  of  a  king  like  Cnut  it  was  a  strong 
monarchy. 

With  the  development  of  the  kingship  there  had 
developed  the  institutional  side  of  two  other  political 
functions  which  it  is  necessary  for  our  purpose  to 
notice — the  administrative,  and  the  combined  judicial- 
legislative.  From  a  beginning  which  was  probably 
hardly  more  than  a  stewardship,  to  look  after  the 
private  interests  of  the  king  in  the  divisions  of  the 
primitive  state,  the  shire-reeve,  the  sheriff,  had  devel- 
oped with  the  growth  of  the  royal  power  into  a  gen- 
eral administrative  and  executive  officer,  having 
duties  of  great  variety,  judicial  as  well  as  administra- 
tive, executing  the  orders  of  the  central  government 
throughout  the  localities,  and  standing  as  well  in  close 
relationship  with  the  local  courts.  It  was  a  generic 
office,  later  undergoing  much  differentiation,  but 
sufficing  amply  for  the  needs  of  a  primitive  govern- 
ment. 

In  the  Anglo-Saxon  state,  as  generally  in  an  early 
stage  of  political  development,  the  legislative  func- 
tion was  scarcely  exercised.  Custom  took  the  place  of 
enacted  law,  and  whatever  institution  had  the  duty  of 
defining  what  the  custom  was  and  of  deciding  disputes 
about  it,  had  as  a  natural  consequence  the  power  of 
making  such  slight  changes  in  the  law,  or  additions 
to  it,  as  seemed  necessary.  In  the  Anglo-Saxon  state 
the  judicial-legislative  function  was  exercised  by  an 

[5] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

assembly  or  rather  by  national  and  by  local  assem- 
blies. The  place  and  grade  of  these  assemblies  corre- 
sponded to  the  divisions  and  subdivisions  of  the  terri- 
tory of  the  state.  The  national  assembly,  widest  in 
scope  and  apparently  in  powers,  seems  to  have  been 
an  aristocratic  body,  formed  by  bringing  together  the 
chief  men  in  church  and  state,  with  no  very  definite 
ideas  that  can  be  called  constitutional  of  what  its 
composition  should  be.  In  addition  to  its  judicial 
and  rather  vague  legislative  functions,  it  seems  to 
have  acted  often  as  a  council,  and  in  times  of  national 
crisis,  as  in  the  vacancy  of  the  throne,  or  in  a  time  of 
disputed  succession,  to  have  assumed  some  authority 
to  express  the  will  of  the  united  tribal  or  national 
whole.  Of  the  composition  of  the  local  assemblies 
of  shire  and  hundred  we  have  no  clear  information 
from  Saxon  times,  but  they  seem  certainly  to  have 
contained  a  more  popular  element,  perhaps  repre- 
sentative in  character,  and  they  exercised  within  their 
narrower  spheres  the  same  judicial  and  legislative 
functions  as  the  national  assembly.  Most  important 
from  our  point  of  view  is  the  fact  that,  whatever  the 
function  exercised,  the  method  by  which  it  was  exer- 
cised was  democratic  within  the  assembly.  The  pre- 
siding officer,  whether  king,  or  ealdorman,  or  sheriff, 
was  a  moderator  only,  having  no  official  right  of 
influence  upon  the  decision  of  questions  before  the 
assembly,  which  reached  its  conclusions  by  the  forma- 
tion of  a  majority  opinion. 

[6] 


GENERAL  INTRODUCTION 

On  the  other  side  were  the  Normans.  They  were 
the  descendants  of  the  Northmen,  or  Scandinavian 
sea-rovers,  who  had  settled  on  the  north  coast  of  Gaul, 
on  both  sides  of  the  river  Seine,  at  the  beginning  of 
the  tenth  century,  three  hundred  years  after  the 
Saxon  settlements  in  Britain  had  become  firmly 
established  and  extensive.  We  know  no  more  of  their 
original  institutions  than  we  know  of  the  Saxon,  but 
they  seem  to  have  stood  in  about  the  same  stage  of 
political  development  and  their  monarchy  also  to  have 
been  developed  after  their  settlement.  If  we  may 
judge  of  the  institutions  with  which  they  were  familiar 
at  the  time,  as  we  probably  may,  by  what  we  learn  of 
Scandinavian  institutions  in  general  from  writings  of 
a  later  date,  they  would  not  differ  materially  from 
the  institutions  of  the  Saxons  and  the  conditions  in 
which  they  were  placed  in  the  conquered  land  would 
probably  tend  to  develop  them  in  the  same  direction. 

The  Normans,  however,  underwent  at  once  an 
experience  to  which  nothing  in  Saxon  history  corre- 
sponded. They  came  into  immediate  contact  with  a 
governmental  system  and  indeed  theoretically  formed 
a  part  of  it,  which  was  much  more  highly  developed 
than  their  own — the  Carolingian  monarchy.  This 
system,  probably  because  they  formed  but  a  small 
minority  of  the  population  of  the  province  they  occu- 
pied, and  because  they  found  their  more  primitive 
institutions  less  fitted  to  cope  with  the  practical  diffi- 
culties of  the  situation,  the  Normans  finally  adopted 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

in  place  of  their  own.  The  Scandinavian  institutions 
which  they  brought  with  them  seem  in  the  end  to  have 
disappeared  without  leaving  discernible  traces  of  any 
importance.3  The  institutions  which  the  Normans 
brought  into  England,  therefore,  were  those  of  the 
Frankish  monarchy. 

These  again  were  Teutonic  in  their  origin,  prob- 
ably not  materially  different  from  those  of  the 
Saxons,  though  the  kingship  had  developed  among 
the  Franks  before  the  conquests  of  Clovis  began. 
But  the  contact  with  the  Roman  governmental  sys- 
tem resulting  from  the  occupation  of  Gaul  had  had 
the  same  effect  upon  them,  though  to  a  less  degree, 
that  the  settlement  in  Normandy  had  upon  the  Scan- 
dinavian, much  that  was  Frankish  remained  in  use 
but  much  that  was  Roman  was  added  to  it,  or  mingled 
with  it  to  form  something  that  was  not  quite  either. 

We  shall  be  concerned  later  with  a  number  of 
details  of  this  Frankish  system,  but  in  this  general 
introductory  survey  we  need  to  notice  the  larger  fea- 
tures only.  The  Frankish  monarchy  at  the  begin- 
ning of  the  reign  of  Clovis  had  been  apparently  not 
more  than  the  kingship  of  a  small  local  subdivision 
of  the  Frankish  tribe,  many  of  which  existed  at  the 
same  time,  not  unlike  the  small  kingdoms  probably 
first  resulting  from  the  Saxon  settlements  in  Britain, 
but  the  military  needs  and  successes  of  Clovis's  con- 
quests had  carried  the  Franks  in  a  single  generation 

8  See  H.  Brunner,  Getchichte  der  Englishen  Rechtsquellen,  p.  62  (1909). 

[8] 


GENERAL  INTRODUCTION 

through  a  development  which  in  England  had  taken 
many.  It  is  probable  also  that  the  model  of  Roman 
centralization,  which  a  conquest  so  rapid  left  largely 
undisturbed,  exerted  an  influence  in  the  same  direc- 
tion which  the  Saxons  never  felt.  At  the  end  of 
Clovis's  life  a  powerful  monarchy  had  been  estab- 
lished, which  was  strengthened  by  his  immediate  suc- 
cessors, and  then,  after  a  period  of  decline,  further 
strengthened  and  institutionally  perfected  by  the 
early  Carolingians. 

The  growth  of  this  monarchical  power  had  been 
accompanied  by  some  change  in  the  character  of  local 
institutions  though  less  than  might  be  expected.  The 
Frankish  local  courts,  originally  closely  analogous  to 
the  Saxon  in  function,  procedure,  and  probably  in 
composition,  had  survived,  though  they  had  become 
less  democratic  in  operation,  a  board  of  appointive 
officers,  the  scabini,  making  the  judgment  of  the  court 
in  place  of  the  popular  assembly.  A  local  administra- 
tive officer,  representing  the  king,  and  exercising 
throughout  the  local  divisions  of  the  state  functions 
closely  similar  to  those  of  the  Saxon  sheriff,  though 
an  office  apparently  quite  different  in  origin,  as  it  was 
in  history,  existed  in  the  count  or  graf .  The  oppor- 
tunity which  an  office,  uniting  in  one  hand  so  many 
of  the  functions  of  government  for  a  definite  locality 
and  held  usually  for  life,  offered  to  its  holder  to 
become  independent  or  to  recognize  only  a  vague 
dependence  on  the  central  power,  had  been  often 

[9] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

embraced  under  the  weaker  Merovingian  kings,  but 
the  early  Carolingian  princes  had  reduced  these 
officers  to  a  new  obedience  and  held  them  under  a 
strict  control  as  true  administrative  officers,  but  still 
of  a  generic  type. 

Of  a  general  assembly  of  national  scope  and  demo- 
cratic in  character,  open  to  the  ordinary  Frankish 
freeman,  scarcely  a  trace  remained.  There  was,  how- 
ever, a  king's  council  or  court,  composed  of  the  officers 
of  the  king's  immediate  household  and  the  chief  men 
of  the  church  and  state.  In  the  things  that  it  was 
accustomed  to  do,  as  in  composition,  it  was  very  like 
the  Saxon  national  assembly,  and  seemed  to  perform 
judicial,  legislative,  and  conciliar  acts  without  con- 
sciously distinguishing  them  in  character.  If  local 
assemblies  corresponding  to  the  shire  courts  of  Saxon 
England  existed  in  the  Frankish  state,  they  certainly 
left  few  traces  in  the  evidence  which  has  come  down 
to  us,  but  of  the  hundred  assembly  there  is  no  doubt. 

At  the  beginning  of  the  tenth  century  when  the 
settlement  of  the  Xorthmen  was  made  along  the  lower 
Seine,  the  Frankish  monarchy  had  recently  passed 
into  a  second  period  of  decline.  A  variety  of  causes, 
partly  political  and  partly  economic,  had  combined 
to  render  the  exercise  of  a  real  central  authority  over 
the  great  empire  which  the  earlier  Carolingians  had 
created  exceedingly  difficult  and  to  favour  the  rise  of 
local  powers,  acknowledging  in  form  the  supremacy 
of  the  emperor  but  actually  independent  in  the  prac- 

[10] 


GENERAL  INTRODUCTION 

tical  government  of  their  territory.  The  leader  of 
the  Normans,  as  count  of  the  lands  they  occupied, 
was  the  representative  of  the  emperor  as  the  officer 
to  whom  it  belonged  to  make  the  authority  of  the  cen- 
tral government  effective  in  that  portion  of  the 
empire.  In  the  actual  powerlessness  of  the  monarch, 
he  fell  heir  to  that  authority  as  if  it  were  his  own,  and 
he  was  able  to  prevent  a  further  weakening  of  it  in 
his  hands.  As  his  territory  assumed  by  successive 
grants  or  occupations  the  size  of  a  small  kingdom, 
coming  not  badly  off  in  this  respect  in  a  comparison 
with  the  kingdom  over  which  Alfred  the  Great  actu- 
ally ruled,  his  power  became  really  sovereign  and 
found  in  extent  and  effectiveness  hardly  an  equal  in 
the  tenth  and  eleventh  centuries. 

In  regard  to  other  institutions  it  seems  highly  prob- 
able that  there  had  already  come  into  existence  in 
Normandy  administrative  and  judicial-legislative 
institutions  very  similar  in  character  to  those  of  the 
Saxons.  The  local  administrative  and  financial 
officer  bore  in  Normandy  the  name  of  viscount — the 
vicecomes — the  count's  deputy,  becoming  as  neces- 
sary to  effective  local  government  when  the  county 
assumed  more  and  more  the  character  of  a  kingdom, 
as  the  count  had  originally  been  for  the  king  of  the 
Franks.  The  tendency  of  these  deputies  to  become 
independent,  which  showed  itself  throughout  the 
whole  Frankish  state,  the  strong  Norman  counts  had 
been  able  to  hold  in  check  and  they  seem  to  have  main- 

[11] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

tained  as  firm  a  hold  over  their  viscounts,  in  nearly 
every  case,  as  Charlemagne  had  maintained  over  his 
counts. 

For  Xormandy  as  a  whole  there  seems  also  to  have 
been  an  assembly  similar  in  composition  and  function 
to  those  of  the  Frankish  empire  and  the  Saxon  king- 
dom. The  chief  men,  lay  and  ecclesiastical,  of  the 
province,  less  conscious  now,  it  is  probable,  of  per- 
forming a  public  than  a  feudal  duty,  met  in  an 
assembly  for  the  whole  territory  subject  to  the  count 
and  did  such  judicial,  legislative,  and  other  business 
as  needed  attention.4 

The  evidence  which  has  come  down  to  us  from 
which  we  can  describe  in  detail  the  institutions  of 
Normandy,  before  the  Conquest,  is  even  more  scanty 
and  fragmentary  than  that  for  Saxon  institutions, 
but  the  larger  features  which  have  been  here  sketched 
seem  nearly  as  well  established  for  the  continent  as  for 
the  island.  It  is  possible  for  us  now  to  say  that  not 
merely  in  remote  origins  and  in  some  phases  of  devel- 
opment, but  also  in  general  features,  the  two  groups 
of  institutions  brought  face  to  face  by  the  Conquest 
were  strikingly  similar.  In  details,  and  in  details  that 
were  important  in  the  subsequent  history,  there  were 
many  differences,  but  at  the  moment  of  the  Conquest 
they  would  count  for  less  than  the  larger  similarities 
and  these  embrace  the  whole  structure,  and  operation 

*Lucien  Valin,  Le  Due  de  Normandie  et  sa  Cour  (1910). 


GENERAL  INTRODUCTION 

of  such  machinery  as  existed  for  the  government  of 
the  state  as  a  whole. 

It  is  evident  a  priori  that  a  conquest  which  should 
make  the  Norman  the  ruler  of  the  Saxon  and  able  to 
determine  the  institutional  character  of  the  resulting 
state,  need  lead  to  no  violent  constitutional  changes, 
but  that  it  might  rather  bring  about  a  new  govern- 
ment by  an  almost  easy  and  natural  combination  of 
the  two  sets  of  institutions  which  it  threw  together. 
In  other  words  it  was  possible  that  a  new  government 
might  be  formed  in  England  by  an  amalgamation  of 
Norman  and  Saxon  institutions  without  giving  to 
anyone  the  impression,  certainly  not  so  strongly  as 
to  get  into  the  record,  that  revolutionary  or  violent 
changes  had  been  made.  We  may  almost  say,  indeed, 
that  if  the  whole  of  Saxon  institutions  had  been  swept 
away,  if  that  were  possible,  and  Norman  had  alone 
survived,  the  change  would  seem  more  revolutionary 
to  us,  thus  baldly  stated,  than  it  would  have  seemed  in 
the  actual  experience  of  contemporaries.  The  two 
sets  of  institutions  were  so  nearly  alike  in  all  their 
essential  features  that  conquest  of  one  by  the  other 
was  hardly  possible,  but  a  union  between  them  was 
easy  and  almost  inevitable.5 

5  The  process,  however,  even  to  its  final  end  can  hardly  be  called  one  of 
union.  For  a  time  Saxon  and  Norman  stand  side  by  side,  for  a  long 
time  in  some  things,  as  in  local  government,  the  one  scarcely  influenced 
by  the  other  in  any  way  that  can  be  clearly  proved.  Gradually  the 
Saxon  disappears,  or  if  it  does  not  disappear,  it  has  been  absorbed  into 
what  is  essentially  Norman  or  derived  from  the  Norman,  by  a  process 
which  can  hardly  be  called  the  union  of  two  into  one,  but  is  rather  the 

[13] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

Such  a  result  was  made  practically  certain  by  the 
disposition  of  William  the  Conqueror.  He  was  "the 
conqueror"  beyond  all  question,  but  he  makes  it  clear 
to  us  by  many  acts  that  he  did  not  wish  to  be  regarded 
in  that  way  by  those  whom  he  had  conquered.  He 
would  tolerate  no  rebellion,  from  Norman  no  more 
than  from  Saxon,  but  his  authority  being  recognized, 
he  desired  to  rule  as  an  English  king  would  have 
ruled  in  his  place,  and  the  most  decisive  changes  which 
he  introduced,  except  in  ecclesiastical  matters,  he 
probably  did  not  know  to  be  changes.  It  is  not  likely 
that  he  ever  understood  how  extensive  the  innovations 
really  were  which  he  actually  made.  His  first  official 
act,  so  far  as  we  know,  after  his  coronation  was  his 
charter  to  the  city  of  London  and  it  is  typical  of  his 
attitude  throughout  his  reign.  It  is  hardly  a  city 
charter  in  the  later  sense,  granting  economic  and 
political  privileges  and  defining  local  government. 
Its  brief  and  general  statements  are  in  line  with  much 
that  was  contained  in  the  later  charters,  in  that  of  his 
son  Henry  I.  for  the  same  city,  for  instance,  but  the 
differences  are  equally  striking.  Certainly  to  those 
to  whom  it  was  addressed  in  the  circumstances  of  the 
moment,  it  would  seem  rather  to  be  a  proclamation, 

modification  or  variation  of  one  by  the  other.  But  the  main  result  is 
clearly  Norman,  that  is,  the  result  of  Norman  development  on  English 
soil.  A  fine  example  of  the  way  in  which  the  two  systems  of  law  stood 
over  against  one  another  just  after  the  Conquest  is  to  be  found  in 
William's  writ  on  procedure,  Liebermann,  Oesetze,  I.  483.  It  is  also  a 
fine  example  of  the  great  consideration  shown  to  Englishmen  in  the 
operation  of  the  law. 

[14] 


GENERAL  INTRODUCTION 

f 

the  proclamation  of  a  conqueror  defining  his  policy, 
and  it  would  say  to  them  chiefly  that  no  foreign  law 
was  to  be  introduced,  that  no  confiscation  was  to  be 
made,  and  that  his  army  was  to  be  restrained  from 
violence.  It  was  a  proclamation,  however,  put  into 
the  form  of  a  charter,  that  is,  of  a  legally  binding 
grant.  The  promises  of  this  proclamation  were  faith- 
fully kept,  so  far  as  we  know,  to  the  city  of  London. 
They  were  not  kept  to  the  country  at  large,  but 
William's  plea  in  defence  would  have  been  one  of 
necessity,  and  I  think  we  must  admit  its  sufficiency, 
judged  by  the  standards  of  the  eleventh  century.  A 
large  body  of  foreign  law  was  introduced  and  became 
firmly  rooted  in  England,  but  no  foreign  law  was 
introduced  of  deliberate  intention.  Extensive  con- 
fiscations were  made,  affecting  perhaps  all,  at  any 
rate  a  considerable  part,  of  the  land  of  the  kingdom, 
and  a  new  theory  of  final  ownership  was  introduced. 
For  these  things  we  can  only  admit  such  justification 
as  may  be  found  in  the  necessity  of  thoroughly  gar- 
risoning the  country,  though  we  may  say,  if  that  be 
extenuation,  that  the  aristocracy  suffered  most  from 
them,  not  the  great  mass  of  the  population.6  The 

6  See  The  Political  History  of  England,  II.  12,  13.  One  is  sometimes 
tempted  to  wonder  if  the  way  in  which  his  guarded  statements  are  treated 
is  fairly  to  be  taken  as  evidence  of  how  his  critic  handles  the  original 
materials  upon  which  he  bases  his  own  scientific  conclusions.  See  Ballard, 
Domesday  Inquest,  p.  5,  which  reads:  "Dr.  Adams  says  that  it  is  an  error 
to  believe  that  the  Conqueror  considered  all  the  land  in  England  to  be 
forfeited  to  him,  and  thinks  that  these  payments  'to  redeem  their  lands' 
were  nothing  more  than  the  customary  feudal  relief  which  was  paid  by 

[15] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

violence  of  the  army  was  not  always  restrained,  nor 
his  own  violence,  to  his  lasting  shame,  but  we  must 
acknowledge  that  as  he  would  regard  the  situation 
his  patience  was  severely  tried,  and  he  had  much 
provocation. 

Using  the  word  constitution  in  the  sense  to  which 
it  was  restricted  at  the  beginning  of  this  chapter,  the 
organization  of  the  national  government  as  distin- 
guished from  the  local,  it  is  my  own  belief  that  the 
history  of  the  English  Constitution  upon  English  soil 
begins  with  the  Norman  Conquest,  and  that,  what- 
ever may  have  been  the  character  of  the  Saxon 
national  organization,  it  made  as  such  but  little  con- 
tribution to  the  later  result.  The  institutions  of  gen- 
eral government  which  grew  in  England  and  in  course 
of  time  passed  into  the  institutions  of  the  modern 
state  are  in  all  the  most  important  particulars  those 
which  were  brought  in  by  the  Normans  in  1066.7 

a  tenant  to  his  new  lord."  In  the  passage  referred  to  at  the  beginning 
of  this  note  it  will  be  found  that  the  suggestions  which  are  made  are 
plainly  put  forward  as  mere  conjectures. 

7  The  use  of  such  words  as  government  and  state  in  a  connection  like 
the  present  is  open  to  objection.  They  convey  to  the  modern  mind  the 
idea  of  a  political  organization  more  highly  developed  than  really  was 
the  case.  There  is,  however,  no  good  substitute  for  them,  and  to  refuse 
to  use  them  in  cases  where  there  really  was  a  political  organization  and 
a  government  in  many  matters  effective,  extending  over  the  whole  com- 
munity, and  serving  the  same  purpose  for  the  needs  of  that  age  which 
the  government  of  the  modern  state  serves,  savours  of  pedantry.  No 
careful  student  is  likely  to  be  led  astray  by  such  terms.  The  word  nation 
is  open  to  more  serious  objection  since  anything  corresponding  to  the 
modern  idea,  even  in  rudimentary  form,  can  hardly  be  said  to  have 
existed  in  the  twelfth  and  early  thirteenth  centuries. 

[16] 


GENERAL  INTRODUCTION 

While  there  may  have  been  so  great  a  similarity  of 
Saxon  and  Norman  institutions  that  no  evidence  of 
violent  substitution  of  one  for  the  other  is  to  be  found, 
there  can  be  no  doubt  but  that  it  was  the  Norman 
constitution,  with  whatever  peculiarities  it  possessed, 
which  ruled  henceforth.  And  beneath  the  superficial 
similarity,  there  was  great  difference.  The  Norman 
was  a  centralized  absolutism,  organized  and  operating 
by  means  of  the  feudal  system.  If  anyone  inclines 
to  think  this  too  definite  a  statement  for  what  we  know 
of  the  Norman  government  before  1066,  it  certainly 
is  the  government  which  ruled  in  England  after 
Christmas  day  of  that  year,  and  there  is  no  evidence 
of  any  constitutional  transformation  which  followed 
the  battle  of  Hastings.  Cnut's  was  a  powerful  mon- 
archy and  England  was  held  in  his  time  with  a  strong 
hand;  Edward  the  Confessor  was  a  strong  king, 
potentially  if  not  actually;  but  the  absolutism  of 
William  I.  is  a  monarchy  of  a  different  type,  both  in 
spirit  and  in  practical  operation.  As  to  the  legis- 
lative machinery,  so  much  alike  on  the  surface  were 
the  two  institutions  that  the  Saxon  Chronicle  went  on 
for  a  long  time  calling  the  Norman  curia  regis  by  the 
old  name  of  witenagemot  as  if  the  writers  thought 
there  had  been  no  change,  but  the  institutional  differ- 
ence between  the  two  is  very  wide.  There  are  many 
things  in  Saxon  society  which  have  a  strongly  feudal 
appearance,  and  in  its  later  history  we  detect  easily 
some  of  the  most  important  elements  which  went  to 

[17] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

form  completed  feudalism,  but  the  Saxon  govern- 
ment was  certainly  not  getting  its  business  done  and 
the  Saxon  landholder  was  not  performing  his  public 
duties,  as  incidents  in  a  prevailing  feudal  organiza- 
tion.8 Towards  all  these  things  I  have  no  doubt  the 
Saxon  world  was  rapidly  drifting,  but  the  Norman 
Conquest  interrupted  the  process.  We  may  char- 
acterize the  change  it  wrought  accurately,  I  think,  by 
saying  that  what  the  Norman  Conquest  did  was  to 
carry  the  English  Constitution  forward  suddenly, 
overnight  as  it  were,  to  results  which  it  would  itself 
have  been  likely  to  reach  after  some  generations,  or 
at  least  to  very  similar  results. 

But  this  is  only  the  same  as  saying  that,  if  we  wish 
to  know  the  earlier  history  of  the  royal  power  which 
William  the  Conqueror  exercised,  we  must  seek  it  in 
the  Frankish  and  not  in  the  Saxon  state.  The  Saxon 
development  towards  a  strong  kingship,  however 
great  it  may  have  been,  comes  to  an  end  with  1066. 
It  can  be  regarded  as  preparation  only.  It  is  the 
Frankish  which  goes  on  from  that  date.  And  it  is  so, 
in  differing  degrees,  with  other  things.  Saxon  witen- 
agemot,  the  national  assembly  of  the  chief  men  of 
church  and  state,  becomes  the  Norman  curia  regis 
composed  of  the  king's  vassals.  Function  does  not 
change,  but  function  is  never  a  test  of  institutional 
difference,  and  the  principle  of  composition  is  decid- 
edly different.  The  Saxon  earl  disappears,  the 

8 See  note  B  at  the  end  of  the  chapter  (p.  44). 

[18] 


GENERAL  INTRODUCTION 

Norman  count  of  that  day  takes  his  place,  though  the 
English  name  continues.  In  superficial  appearance 
the  office  of  sheriff  seems  to  have  changed  very  little, 
but  this  primitive  organ  of  centralization  shared  in 
the  increased  royal  power  and  obtained  a  local 
authority  and  a  range  of  activity  which  it  would  prob- 
ably have  been  some  time  in  reaching  by  natural 
growth.  These  may  serve  as  examples  of  the  general 
fact.  The  change  is  either  so  great  that  we  have  a 
right  to  say  that  it  is  the  Norman  and  not  the  Saxon 
which  goes  on,  as  in  the  case  of  the  monarchy  and  of 
the  witenagemot,  or  it  is  great  enough  to  contribute 
the  essential  element  of  future  growth  as  in  the  case 
of  the  shrievalty. 

It  should  be  clearly  observed  that  I  am  saying 
nothing  here  regarding  the  great  province  of  local 
institutions  and  local  law.  That  is  the  field  in  my 
opinion  of  which  Saxon  institutions  kept  possession 
and  in  which  comparatively  few  Norman  innovations 
were  made,  except  so  far  as  feudalism  and  later  the 
new  judicial  institutions  entered  the  field.  But  with 
local  institutions  I  am  to  be  in  this  book  only  inci- 
dentally concerned.9  In  the  case  of  institutions 
through  which  the  business  of  the  country  as  a  whole 

9  A  distinction  between  the  local  and  the  national,  based  upon  differ- 
ences of  origin,  history,  or  character,  is  possible  in  the  history  of  other 
countries  besides  England.  In  present  France,  for  example,  the  national 
government  has  been  profoundly  changed  since  1789  and  has  few  roots 
in  French  history  of  an  earlier  date,  but  this  is  far  less  true  of  the  local 
government. 

[19] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

was  managed,  while  superficial  appearances  in  many 
cases  seem  unchanged,  any  minute  examination  will 
show  that  in  necessary  institutional  interpretation,  as 
of  the  witenagemot,  the  change  is  great,  or  that  the 
impulse  to  fruitful  growth  is  new. 

Of  these  Norman  innovations  in  the  field  of  gen- 
eral government  two  greatly  exceed  all  others  in  their 
influence  on  the  future.  They  are  the  centralized 
monarchy  and  the  feudal  system. 

Of  the  centralized  monarchy  it  is  not  possible  to 
say  much  beyond  a  statement  of  the  fact  itself.  It  is 
my  own  belief  that  the  executive  and  administrative 
power  of  the  Norman  duke  and  his  practically  un- 
limited control  of  his  little  state  came  to  him  in  direct 
descent  from  the  strongest  age  of  the  Carolingian 
monarchy  combined  with  the  fact  that  he  was  at  the 
beginning  the  chief  of  a  conquering  invasion  which 
settled  upon  the  land.  The  real  descendants  in  early 
Capetian  times  of  the  strong  rulers  of  the  Carolingian 
empire  at  its  height  are  to  be  found  not  so  much  in 
the  occupants  of  the  throne  as  among  the  successors 
of  those  local  agents  through  whom  the  imperial  cen- 
tralization had  been  exercised — counts  and  viscounts 
now  become  feudal  barons,  or  of  those  who  by  usur- 
pation had  assumed  their  rights  and  names.  They 
are  found  among  the  greater  where  the  count  or  duke 
had  succeeded  in  checking  the  tendency  to  further 
division  of  these  powers,  as  in  Normandy,  possibly 
because  of  the  fact  of  conquest,  and  among  the  barons 

[20] 


GENERAL  INTRODUCTION 

of  some  subordinate  rank  in  cases  where  that  ten- 
dency had  not  been  checked,  as  in  Aquitaine.  The 
powers  once  exercised  as  the  instruments  of  a  strong 
monarchy  they  continued  to  exercise  as  if  they  were 
their  own.  I  am  not  saying  that  the  Capetian  kings 
ever  surrendered  their  claim  to  the  complete  govern- 
ment of  the  state  in  all  particulars;  that  they  never 
did,  and  probably  we  should  now  recognize  a  larger 
actual  power  in  their  hands  than  would  have  been 
admitted  fifty  years  ago.  But  throughout  the  larger 
part  of  modern  France  in  1066  the  actual  govern- 
ment which  came  into  immediate  contact  with  land 
and  people  and  maintained  law  and  order  locally  was 
not  exercised  by  the  king  but  by  some  feudal  baron 
holding  under  his  control  a  larger  or  smaller  district. 
In  Normandy  the  district  was  large  and  the  control 
was  strict,  except  possibly  over  some  subordinate  lord- 
ships lying  on  the  borders.10 

With  reference  to  William's  government  of  Eng- 
land the  fact  should  not  be  overlooked  that  the  Nor- 
mandy over  which  he  ruled  before  the  Conquest  was 
in  area  a  very  respectably  sized  kingdom  for  the 
eleventh  century.  Few  sovereigns  of  his  day  con- 

10  Any  assertion  concerning  the  absolutism  of  the  Norman  duke  before 
the  Conquest  which  deals  with  details,  if  regarded  as  dogmatically  made, 
is  likely  to  go  beyond  our  present  possibilities  of  proof.  What  I  have 
said  should,  therefore,  be  considered  as  my  personal  belief  only.  The 
fact  should  not,  however,  be  overlooked  that  as  we  learn  by  degrees 
more  and  more  of  the  conditions  of  pre-Conquest  Normandy,  their  like- 
ness to  those  in  England  immediately  after  the  Conquest  becomes  more 
apparent. 

[21] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

trolled  with  anything  like  the  same  actual  effective- 
ness a  larger  territory  than  his.  So  far  as  concerns 
the  difficulty  of  that  age  which  created  the  most 
serious  problem  for  a  general  government,  the  diffi- 
culty of  intercommunication,  England  as  conquered 
"by  William  was  not  enough  larger  geographically  to 
render  the  methods  and  machinery  of  his  Norman 
government  less  effective  there  than  at  home.  Eng- 
land, indeed,  presented  no  difficulty  of  general  gov- 
ernment which  William's  experience  had  not  trained 
him  to  overcome.  For  William,  certainly  the 
simplest  and  most  natural  thing  would  be  to  transfer 
to  England  bodily  the  entire  machinery  of  govern- 
ment as  he  was  operating  it  in  Normandy,  and  that 
is  undoubtedly  what  he  did.  For  England,  the  expe- 
rience of  almost  a  hundred  years,  since  the  beginning 
of  the  second  Danish  attack,  in  the  drift  of  the  mon- 
archy towards  absolutism  and  of  local  arrangements 
towards  things  more  nearly  feudal,  had  been  prepar- 
ing to  make  the  transition  easy,  easy  for  William  to 
make  the  transfer,  and  easy  for  Englishmen  to  recon- 
cile themselves  to  the  new  with  little  sense  of  violent 
change. 

Whatever  may  be  true  of  Normandy,  in  England 
the  result  of  the  campaign  of  1066  was  the  establish- 
ment of  a  monarchy  so  absolute  that  there  was  neither 
in  the  law  nor  in  the  practices  of  the  time  any  recog- 
nized method  of  setting  a  limit  to  its  action,  or  perhaps 
it  would  be  more  accurate  to  say  that  the  sovereign 

[22] 


GENERAL  INTRODUCTION 

was  limited  only  by  his  own  sense  of  obligation  to 
existing  law,  which  was  almost  wholly  customary  and 
unwritten,  and  that  the  only  means  of  enforcing  such 
law  upon  him  was  by  individual  protest,  or  by  more 
or  less  general  rebellion.11  This  absolutism  was  exer- 
cised in  practice  through  an  organization  simple  and 

11  The  Norman  king  cannot  be  said  to  be  absolute  in  the  extreme,  or 
ideal  sense  of  the  term.  He  is  suzerain  as  well  as  king,  or  better,  he 
is  suzerain  because  he  is  king,  and  as  such  he  is  limited  by  the  obligations 
assumed  in  the  feudal  contract,  and  by  the  property  rights  of  the 
barons,  created  and  protected  by  that  contract.  The  point  which  I  wish 
to  make  in  the  text  is  that  there  was  no  recognized  and  permanent 
machinery,  which  may  be  called  constitutional,  for  enforcing  this  or 
any  other  limitation.  As  a  matter  of  practical  operation,  this  feudal 
limitation  seems  to  have  been  effective  only  where  the  law  was  clearly 
against  the  king,  and  the  party  of  barons  in  opposition  large  and  strong 
enough  to  determine  the  opinion  of  the  curia  regis  and  to  out-balance 
the  force  which  the  king  could  collect.  See  the  cases  referred  to  in 
note  22  to  chapter  IV.  Such  cases  are  virtual  appeals  to  force,  and 
they  succeed  without  open  force  because  the  opposition  is  too  strong 
to  be  overcome.  The  case  of  William  II.  against  Anselm  at  Rockingham 
in  1095  is  typical  enough.  The  king  seems  to  have  hoped  to  put  the 
archbishop  in  the  wrong  legally,  as  acting  in  violation  of  the  fealty 
owed  him,  in  order  that  he  might  get  rid  of  him  entirely  as  archbishop. 
This  seems  to  be  the  real  meaning  of  the  demands  made  of  the  bishops 
and  barons  (Eadmer,  62-64).  If  this  could  be  done,  it  would  be  treating 
the  spiritual  office  as  dependent  upon  the  political  conduct  of  the  incum- 
bent, to  be  declared  vacant  as  the  office  of  sheriff  might  be  on  the  dis- 
loyalty of  the  baron  holding  it.  In  other  words,  it  would  be  regarding 
the  archbishopric  solely  as  an  office  of  the  state.  Such  a  plan  would 
be  a  natural  and  entirely  logical  result  of  lay  investiture  as  practiced 
by  the  Norman  kings,  and  William  may  very  well  have  believed  that 
he  was  acting  entirely  within  his  legal  rights.  The  barons,  however, 
did  not  share  his  belief  as  they  evidently  did  not  his  view  of  the  rela- 
tion of  church  and  state,  and  the  king  failed  to  accomplish  his  design. 
How  much  this  experience  may  have  had  to  do  with  Anselm's  later 
position  on  the  subject  of  lay  investiture  it  is  not  possible  to  say,  but 
it  is  easy  to  imagine  that  it  may  have  opened  his  eyes  to  the  conse- 
quences of  the  practice. 

[23] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

even  crude  in  character,  but  one  which  created  a  true 
and  effective  centralization  unsurpassed  in  any  other 
country  of  the  time.  The  institutional  details  of  this 
organization  will  be  described  in  the  second  part  of 
this  introduction;  here  I  am  concerned  with  the  prac- 
tical result.  What  that  was  cannot  be  mistaken.  It 
is  perhaps  best  seen  in  William's  own  confidence  in 
the  security  and  strength  of  his  position.  He  was  not 
afraid  within  three  months  of  his  coronation,  with  but 
a  fraction  of  the  country  actually  occupied,  to  return 
to  Normandy  for  half  a  year,  leaving  his  conquest  in 
the  hands  of  subordinates.  He  was  not  afraid,  in  the 
distribution  of  confiscated  lands  to  his  followers,  to 
create  solid,  or  almost  solid,  principalities,  as  for  one 
brother  in  Cornwall  where  nearly  the  whole  county, 
and  large  territories  in  adjoining  counties,  were  made 
into  an  earldom,  and  for  another  brother  one  less 
extensive  but  in  some  respects  even  more  dangerous, 
on  the  east  side  of  England.  He  was  not  even  afraid 
in  the  case  of  three  at  least  of  these  great  lordships, 
Shropshire,  Chester,  and  Durham,  to  vest  in  their 
holders  almost  the  rights  and  functions  of  the  king 
himself.  Events  justified  his  confidence.  When  two 
of  the  most  powerful  of  the  Norman  earls,  hoping 
apparently  to  gain  greater  independence,  and  pos- 
sibly excited  by  the  fact  that  the  king's  fiscal  agents, 
the  sheriffs,  had  infringed  some  of  the  privileges 
granted  them  in  their  lands,  appealed  to  arms  against 
the  king,  the  failure  of  their  attempt  was  immediate 

[24] 


GENERAL  INTRODUCTION 

and  complete.12  When  later  in  his  reign  his  brother, 
Odo,  showed  himself  determined  to  follow  a  policy 
of  his  own  in  disregard  of  William's  wishes,  he  was 
arrested,  tried,  and  condemned,  with  no  possibility 
of  resistance,  and  released  from  imprisonment  only 
by  the  king,  upon  his  deathbed,  reluctantly  yielding 
to  persuasion.  Not  only  was  there  in  the  reign  of 
William  the  Conqueror  no  recognized  method  of 
marking  out  any  limit  to  the  king's  exercise  of  power, 
but  we  may  almost  say  that  no  attempt  was  made, 
certainly  no  concerted  attempt  was  made  to  check  its 
exercise  or  to  define  its  limits  in  practice. 

It  is  true,  however,  that  William  I.'s  character 
served  as  a  check  upon  arbitrary  government.  Once 
or  twice  he  lost  control  of  himself  and  acted  for  the 
moment  upon  the  impulse  of  passion,  but  almost 
always  though  severe  he  was  just,  and  respected  law 
as  it  existed,  and  the  customary  rights  of  churchman 
and  layman.  It  is  under  his  son  William  II.  that  we 
get  our  first  evidence  of  what  the  Norman  monarchy 
might  be  in  the  hands  of  a  tyrant.  We  may  believe 
that  the  evidence  regarding  his  reign  which  has  come 
down  to  us,  almost  exclusively  from  ecclesiastical 
writers,  should  be  received  with  some  qualifications, 
that  in  personal  character  at  least  William  Rufus  was 
not  quite  so  bad  as  he  was  painted,13  and  yet  when  all 

12  The  Political  History  of  England,  II,  61. 

13  It  is  natural  in  a  society  which  reasons  little  about  its  political  situa- 
tion, but  is  strongly  influenced  by  religious  feelings,  that  condemnation 
of  the  methods  of  government  should  be  translated  into  condemnation 

[25] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

reasonable  deduction  has  been  made,  it  is  clear  from 
these  and  other  sources  that  in  respect  for  what  was 
regarded  at  the  time  as  the  rights  of  his  subjects  the 
reign  is  in  contrast  with  his  father's ;  that  he  was  gov- 
erned by  his  will  alone,  and  that  he  pushed  the  rights 
of  the  king  to  extremes  which  were  logical  perhaps, 
but  which  the  customary  law  of  the  time  did  not 
recognize.  In  such  a  reign,  if  ever,  checks  in  insti- 
tutions or  in  practice  would  make  themselves  evident. 
But  we  find  no  indication  of  anything  that  may  be 
called  a  constitutional  limitation.  Rebellion  was  the 
only  thing  to  which  appeal  could  be  made  and  rebel- 
lion was  as  powerless  against  him  as  against  his 
father.  There  is  no  evidence  that  William  II.  ever 
refrained  from  any  action  which  he  earnestly  wished 
to  perform  either  because  it  exceeded  his  legal  powers 
or  because  he  was  afraid  of  the  opposition  he  might 
excite.14  It  seems  natural  to  suppose  that  we  have  a 
less  complete  picture  of  his  tyranny,  unbridled  to  the 
end  of  his  reign,  than  we  have  of  John's,  merely 
because  our  sources  of  information  are  less  complete. 
It  is  at  the  beginning  of  the  reign  of  Henry  I.  that 

of  the  personal  character  of  the  ruler.  There  were  many  instances  of 
this  in  medieval  times,  from  Charles  Martel  on,  and  we  may  suspect 
that  John  has  also  suffered  from  this  tendency  though  to  a  less  degree 
than  William  II.  Geoffrey  Gaimar's  brief  account  in  his  Estoire  des 
Engles  is  the  only  lay  narrative  of  William's  reign  which  we  have,  and 
he  says 

Unc  ne  fust  rei  si  bien  amez, 

Ne  de  sa  gent  si  honurez.    11.  5923-4. 

M  See  note  11,  p.  23. 

[26] 


GENERAL  INTRODUCTION 

we  detect  the  first  effort  to  transform  the  moral  limi- 
tation of  the  customary  law,  which  hitherto  would 
have  such  force  merely  as  the  conscience  of  the  king 
allowed  it,  over  into  such  a  definite,  legally  binding, 
and  permanent  form  that  we  may  begin  to  call  it  con- 
stitutional. The  coronation  charter  of  Henry  added 
nothing,  or  it  would  be  more  accurate  to  say  that  in 
theory  it  added  nothing,  to  the  law  as  it  existed. 
What  it  attempted  to  do  was  to  introduce  the  new 
theory  and  to  make  it  a  part  of  the  law,  that  the 
throne  was  held,  at  least  in  Henry's  case,  on  condition 
of  faithfully  observing  the  obligations  of  the  custom- 
ary feudal  law.  This  principle,  indeed,  or  rather  the 
foundation  upon  which  it  logically  rested  in  law,  was 
not  new,  being  essential  to  the  feudal  relationship, 
but  to  form  out  of  it  an  explicit  and  written  contract 
for  the  bestowing  and  the  holding  of  the  throne,  which 
was  the  virtual  character  of  the  coronation  charter, 
was  new.  The  attempt,  however,  was  a  failure,  and, 
except  as  a  model  for  later  imitation,  it  had  no  effect 
on  the  growth  of  the  constitution.  After  Henry  had 
put  down  the  great  insurrection  which  threatened  his 
power  at  the  beginning  and  had  overcome  his  brother 
Robert,  he  proved  himself  like  his  father  and  his 
brother  William  so  strong  that  no  limitations  could 
be  enforced  upon  him.  This  is  clearly  shown  by  the 
fact  that  the  feudal  innovations,  if  they  were  inno- 
vations, so  far  at  least  as  we  can  judge  of  them  from 
the  practices  which  the  barons  in  the  charter  insisted 

[27] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

should  be  abandoned,  were  not  merely  continued  in 
use  but  passed  after  his  long  reign  into  the  undis- 
puted feudal  law  of  England.15 

It  is  not  necessary  to  carry  this  sketch  further.  The 
reign  of  Stephen  was  the  reign  of  a  king  who  did  not 
exercise  the  power  of  his  predecessors,  but  the  differ- 
ence was  occasioned  not  by  any  change  in  the  insti- 
tutional situation  but  by  the  character  of  the  king. 
Lack  of  will  power  and  of  the  comprehensive  grasp 
of  things  necessary  to  maintain  order  in  a  state  of  the 
twelfth  century,  where  intercommunication  was  so 
uncertain,  were  the  reasons  for  Stephen's  failure. 
What  characterized  his  time  was  not  a  limited  mon- 
archy; it  was  anarchy.  The  royal  power  as  it  had 
existed  under  the  first  Henry  was  speedily  recon- 
structed by  the  second.  But  with  the  reign  of  Henry 
II.  we  reach  a  new  epoch,  the  first  epoch  of  change 
in  the  machinery  of  the  Anglo-Norman  state,  but,  as 
we  shall  see  later,  the  changes  of  that  age  were  all  in 
the  direction  of  a  more  effective,  a  better  operated 
centralization,  and  of  a  stronger  monarchy.  No  trace 
can  be  found  in  Henry's  reign,  or  in  Richard's,  or 
John's,  until  we  reach  Magna  Carta,  of  any  attempt 
to  create  limitations  upon  the  action  of  the  royal  will, 
or  to  devise  machinery  for  the  expression  of  a  will 
opposed  to  the  sovereign's.  The  Anglo-Norman 

is  For  instances  of  the  treatment  of  vacant  ecclesiastical  fiefs  under 
Henry  I.,  see  Red  Book  of  the  Exchequer,  pp.  210,  211. 

[28] 


GENERAL  INTRODUCTION 

monarchy  was  institutionally  an  absolutism,  and  in 
practice  probably  none  was  ever  more  so. 

It  must  not  be  supposed  that  I  am  asserting  that 
it  was  in  this  respect  exceptional  among  the  mon- 
archies of  the  time.  In  institutional  methods  the 
Anglo-Norman  monarchy  at  its  climax  of  develop- 
ment, let  us  say  during  the  absence  of  Richard  in  the 
Holy  Land,  considered  as  a  government  of  the  whole 
country,  scarcely  differed  by  the  addition  of  a  detail 
from  the  Carolingian  monarchy  at  its  highest  point. 
There  were  some  differences  of  form,  there  had  been 
considerable  perfection  of  details,  the  centralization 
was  better  guarded,  and  the  growth  of  feudalism  had 
transformed  the  institutional  basis  of  some  important 
matters,  but  while  most  of  these  changes  did  indeed 
tend  to  a  stronger  and  more  secure  monarchy,  still 
in  really  essential  character,  looked  at  as  machinery 
and  looked  at  from  the  side  of  the  king,  the  govern- 
ment of  Richard  was  in  effect  the  government  which 
Charlemagne  left  to  his  son  Louis  the  Pious,  strength- 
ened and  improved.15  Now  this  government  was  in- 
herited by  all  the  fragments  into  which  the  Caro- 
lingian empire  broke.  Some  details  which  the  Nor- 
man state  retained,  or  it  may  be  we  should  say  revived, 
disappeared  elsewhere,  but  the  reason  for  that  is  to 
be  found  in  what  is  in  truth  the  reason  for  the  differ- 

!6  That  is  to  say,  the  effect  of  the  development  of  the  king's  prerogative 
action  during  the  twelfth  century  had  been  to  secure  and  strengthen 
the  royal  centralization.  See  chapter  II.,  note  21. 

[29] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

ence  throughout  between  the  Norman  monarchy  and 
its  contemporaries — in  the  character  of  the  sover- 
eigns, aided  perhaps  by  the  fact  of  its  comparatively 
small  geographical  extent.  The  Norman  monarchy 
was  more  absolute  than  any  other  not  because  of  any 
institutional  difference  but  from  a  practical  reason, 
the  machinery  which  it  had  inherited  it  kept  in  effec- 
tive and  successful  operation,  for  its  original  purpose 
and  in  its  original  spirit,  or  at  least  it  did  not  allow  it 
to  pass  out  of  use  for  so  long  a  time  as  to  be  beyond 
the  possibility  of  revival.  This  Carolingian  absolu- 
tism the  Norman  Conquest  brought  into  England, 
and  the  results  of  the  Conquest  maintained  it,  and 
greatly  perfected  it,  during  a  century  and  a  half. 
The  first  great  fact  with  which  the  history  of  the  Eng- 
lish Constitution  begins  is  the  absolute  monarchy 
institutionally  unlimited. 

The  second  fact,  equally  fundamental,  is  feudal- 
ism.17   Of  it  in  relation  to  the  past  the  same  is  to  be 

17  It  may  seem  as  if  the  existence  together  in  one  state  of  a  centralized 
monarchy  and  a  feudal  system  would  be  impossible,  and  I  think  this 
has  been  unconsciously  assumed  by  students  of  early  constitutional 
history.  But  certainly  the  most  fundamental  fact  in  English  constitu- 
tional history,  that  from  which  all  else  proceeds,  is  the  existence  together 
during  a  long  period  of  time,  of  the  most  highly  centralized  monarchy 
and  the  most  logically  developed  feudalism  of  contemporary  Europe. 
If  one  turns  aside  from  the  localizing  and  separatist  tendency  of  feu- 
dalism, which  is  likely  to  be  the  thing  about  it  which  attracts  most  atten- 
tion, and  regards  only  its  institutional  side,  it  can  easily  be  seen  that 
there  is  nothing  in  the  nature  of  the  case  which  prevents  an  absolute 
monarchy  and  a  logical  feudalism  from  existing  side  by  side.  Feudalism 
viewed  from  this  point  is  only  a  particular  method  of  organizing  the 
machinery  of  carrying  on  government. 

[30] 


GENERAL  INTRODUCTION 

said  as  of  the  monarchy.  Such  development  of  things 
feudal  as  had  taken  place  in  Saxon  times  served  only 
as  preparation  for  the  easy  introduction  of  the  more 
perfect  and  highly  developed  Norman  feudalism,  and 
Norman  feudalism  it  is  which  takes  possession  of 
England  and  influences  her  institutional  future. 
This  influence  it  exerts  in  two  ways,  first,  directly, 
through  institutions  and  law,  second,  less  directly, 
through  feudal  ideas  and  the  interpretations  of  other 
facts  to  which  they  lead. 

Of  Xorman  feudalism  before  the  Conquest  we  can 
say  little  more  than  of  the  monarchy.  Evidence  as 
to  its  character  is  increasing,  and  if  we  can  trust  to 
present  indications,  we  may  say  that  it  exhibits  all  the 
characteristic  traits  of  the  later  Anglo-Norman  feu- 
dalism.18 Norman  feudalism  on  the  eve  of  the  Con- 
quest had  apparently  realized  in  practice  all  the  fun- 
damental ideas  of  Franco-Roman  feudalism,  and  had 
done  so  in  highly  logical  form,  and  this  feudalism, 
tending  to  approach  an  ideal  standard,  existed  in  the 
presence  of  a  supreme  central  authority  whose  task 
it  did  render  more  difficult  but  which  it  did  not 
seriously  weaken;  it  rather  served  as  the  means 
through  which  government  was  carried  on.  So  far 

is  On  feudal  institutions  in  Normandy  before  the  Conquest  and  during 
the  reign  of  William  the  Conqueror,  and  on  the  government  of  the  duchy 
in  general,  see  the  studies  of  Professor  Charles  H.  Haskins  as  published 
recently  in  the  English  Historical  Review  and  the  American  Historical 
Review,  especially  volumes  XXII.  to  XXVI.  of  the  former,  and  VIII. 
and  XIV.  of  the  latter. 

[31] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

as  we  can  tell  from  the  glimpses  which  we  get  of  this 
pre-Conquest  Norman  government,  we  seem  to  have 
the  right  to  say  that  the  legislative,  judicial,  conciliar, 
and  military  functions  of  the  state  in  their  ordinary 
operation  were  thoroughly  feudalized,  and  the  admin- 
istrative system  partially  so,  but  that  in  the  latter 
regularly  we  find  the  province  of  the  most  inde- 
pendent action  of  the  executive  authority,  especially 
in  matters  financial,  though  such  action  is  to  be  seen 
occasionally  in  other  functions  of  government.  At 
any  rate  this  is  the  character  of  the  Anglo-Norman 
feudalism  immediately  after  the  Conquest  and, 
though  the  consideration  is  no  doubt  a  priori,  it  is  diffi- 
cult to  suppose  that  any  such  transformation  attended 
the  Conquest  as  would  be  necessary  to  put  so  com- 
pletely feudalized  a  governmental  system  in  place  of 
one  less  thoroughly  so.  We  should  naturally  expect 
the  influence  of  the  Conquest  to  be  in  the  opposite 
direction,  if  in  either,  and  certainlv  in  the  evidence 

tt 

accessible  to  us  there  is  no  trace  of  such  a  substitution. 
I  am  not  asserting  that  the  Conquest  brought 
Anglo-Norman  feudalism  into  England  in  its  final 
form,  that  there  was  no  difference  between  the  feudal- 
ism of  William  I.'s  reign  and  that  of  a  century  later. 
The  year  1066  falls  still  within  the  formative  age  of 
feudal  history,  and  England  not  merely  shares  with 
the  rest  of  the  feudal  world  certain  changes  which 
take  place  elsewhere,  chiefly  in  the  interest  of  the 
vassal,  but  also  herself  carries  through  certain  other 

[32] 


GENERAL  INTRODUCTION 

changes,  logical  enough  but  peculiar  to  herself,  or 
nearly  so,  in  the  interest  of  the  suzerain. 

But  if  the  year  1066  falls  still  within  the  formative 
age  of  feudal  history,  it  is  near  the  close  of  that  age. 
It  was  a  highly  perfected,  highly  logical,  widely 
embracing  feudalism,  which  the  Conquest  introduced 
into  England.  It  is  just  as  difficult  to  suppose  that 
the  mere  fact  of  the  Conquest  transformed  the  incip- 
ient, chaotic,  Anglo-Saxon  feudalism  into  the  feudal- 
ism of  Domesday  Book19  and  contemporary  docu- 
ments, as  to  suppose  that  it  created  Anglo-Norman 
feudalism  at  a  blow.  The  process  which  seems  a  priori 
the  most  natural  to  expect  and  the  most  easy  certainly 
has  the  support  of  such  evidence  as  we  possess.  This 

19  Domesday  Book  was,  of  course,  drawn  up  to  record  chiefly  the  eco- 
nomic side  of  feudalism.  Anything  else  which  appears  in  it  is  inci- 
dental and  largely  accidental.  But  information  concerning  political 
feudalism  is  not,  therefore,  insignificant  in  amount  when  it  is  put 
together.  The  structure  of  the  book  itself  is  feudal.  It  assumes  that 
the  prevailing  organization  of  the  land,  and  of  the  society  with  which 
it  concerns  itself,  is  chiefly  feudal.  The  vassal  relationship  dominates 
every  other  and  is  greatly  in  advance,  institutionally  and  in  the  definite- 
ness  with  which  it  is  understood  and  operated,  of  the  Anglo-Saxon  com- 
mendation relationship.  It  includes,  for  instance,  in  one  bond  both  land 
and  person.  Military  feudalism  is  everywhere,  the  domain  manor  on 
every  page,  the  private  court  is  clearly  recognized,  and  many  details 
of  feudal  law,  homage,  reliefs,  wardship  and  marriage,  trial  by  peers, 
etc.,  may  be  collected  from  brief  and  indirect  references  in  its  pages. 
One  must  also  remember  in  the  study  of  Domesday  Book  that  the  evi- 
dence in  it  of  royal  extra-feudal  action,  as  in  the  commissioners  and 
the  juries,  or  of  the  operation  of  local  non- feudal  machinery,  as  in  the 
county  courts,  and  the  hundreds,  is  no  evidence  of  the  incompleteness 
of  feudalization.  It  is  the  operation  of  these  three  things  together — 
the  feudal  machinery  of  general  government,  the  non-feudal  prerogative 
action  of  the  king,  and  the  non-feudal  machinery  of  local  government — 
which  constitutes  in  full  the  Norman  state. 

[33] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

is  that  William  the  Conqueror,  having  the  way  pre- 
pared by  the  prevalence  throughout  England  of  ideas 
and  practices  which  were  feudal,  so  far  as  they  went, 
introduced  bodily,  with  no  serious  disturbance  of 
things,  the  more  perfected  political  feudalism  of  Nor- 
mandy and  set  it  up  as  completely  in  possession  of 
government  and  society  as  it  was  across  the  Channel. 
This  was  indeed  the  only  course  possible  to  him.  To 
have  freed  himself  and  his  kingdom  from  feudal  ways 
of  doing  things  and  to  have  invented  instead  a  non- 
feudal  organization  for  the  business  of  government 
would  have  been  as  impossible  as  to  have  taken  ad- 
vantage of  the  Conquest  to  set  up  what  we  know  as 
the  Anglo-Norman  feudal  system  from  a  less 
developed  original  without  marking  our  sources  of 
information  with  indelible  evidence  of  the  process. 
William  had  been  brought  up  from  his  earliest  youth 
in  feudalism  and  he  had  never  known  any  other 
method  of  organization.  When  he  parceled  out  the 
lands  of  England  among  his  followers  he  could  not 
do  otherwise  than  to  give  them  to  be  held  by  a  feudal 
tenure  and  by  feudal  services,  and  by  this  very  fact 
he  unavoidably  introduced  the  whole  feudal  govern- 
mental system  since  that  operated  itself  entirely  by 
means  of  feudal  tenures  and  feudal  services. 

The  ways  in  which  Anglo-Norman  feudalism 
served  as  machinery  for  the  central  government  in 
the  performance  of  its  functions  will  appear  in  impor- 
tant details  later  in  this  book;  here  we  are  concerned 

[34] 


GENERAL  INTRODUCTION 

with  the  more  general  fact  of  its  introduction  and 
with  the  outline  of  its  history  to  the  first  age  of  con- 
stitutional change — the  age  of  Henry  II. 

It  is  a  traditional  interpretation  of  the  reign  of 
William  II.,  and  the  interpretation  seems  to  find  not 
a  little  support  in  the  evidence,  that  his  tyranny  con- 
sisted in  pushing  to  extremes  the  rights  of  the  para- 
mount suzerain,  which  were  logically  involved  in  the 
feudal  relationship,  particularly  in  such  matters  as 
relief  and  wardship,  and  in  insisting  on  applying 
these  rights,  as  his  father  had  not  done,  to  baronies 
held  by  ecclesiastics.  The  evidence  to  support  this 
interpretation  of  his  action  in  regard  to  fiefs  of  the 
church  is  not  extensive  but  is  fairly  conclusive.  For 
the  rest  some  vague  complaints,  like  that  of  the  Saxon 
chronicle  that  he  would  be  every  man's  heir,  and  the 
coronation  charter  of  Henry  I.,  are  the  chief  evidence. 
The  evidence  is  enough  to  warrant  us  in  the  absence 
of  more  definite  knowledge  in  assuming  that  the 
traditional  understanding  is  correct.  If  it  is,  the 
reign  of  William  Rufus  is  a  period  of  advance  in  two 
directions,  first  a  more  logical  and  complete  develop- 
ment of  fundamental  feudal  principles,  giving  us  a 
more  nearly  ideal  feudalism,20  but  second  a  develop-  >1 
ment  in  the  interest  of  the  suzerain,  in  this  case  more 
immediately  of  the  lord  paramount.  In  this  way  the 
already  strong  Norman  monarchy  would  be  further 
strengthened  particularly  in  the  clearer  recognition 

20  See  note  A  at  the  end  of  chapter  IV. 

[35] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

of  its  complete  hold  over  all  feudal  property  and  in 
its  financial  rights.  There  is,  I  think,  no  doubt  but 
that  we  must  say  that  this  clear  recognition  of  the 
king's  rights,  which  is  the  distinctive  mark  of  Anglo- 
Norman  feudalism,  is  given  it  during  the  reigns  of 
the  Conqueror's  two  sons  rather  than  in  his  own, 
though  the  principle  from  which  it  was  developed 
was  clearly  recognized  from  the  beginning — that  all 
the  land  of  the  kingdom  is  held  of  the  king. 

The  attempt  made  by  the  barons  in  the  coronation 
charter  of  Henry  I.  to  put  an  end  to  this  develop- 
ment, an  attempt  certainly  in  the  interests  of  the 
feudal  baron,  but  not  in  the  interests  of  a  logical 
feudalism  or  of  feudalism  regarded  as  a  means  of 
general  government,  was  a  failure.21  The  charter  is 

21 1  do  not  mean  to  say  that  the  barons  understood  their  action  in  this 
way,  or  were  consciously  attempting  to  set  up  such  restrictions  at  so 
early  a  date.  They  probably  thought  of  nothing  beyond  the  fact  that 
the  king's  action  had  been  illegal,  and  that  they  had  a  right  to  demand 
that  it  should  stop.  In  strict  feudal  law  they  were  right,  I  think,  and 
they  did  not  go  beyond  this  right  except  in  the  matters  of  wardship  and 
marriage.  The  customary  is  the  legal  in  feudal  law,  and  the  new  is 
illegal,  no  matter  how  logical,  unless  consent  is  obtained.  What  occurred, 
however,  under  William  II.  and  Henry  I.,  with  the  reservation  in  regard 
to  our  ignorance  which  I  have  made  in  the  text,  seems  to  me  to  differ 
from  what  occurred  in  the  Angevin  period  of  centralization  in  this  impor- 
tant matter,  that  the  earlier  innovations  were  logical  deductions  from 
feudal  principles,  while  in  the  Angevin  period  feudal  principles  are 
calmly  disregarded  whenever  they  are  found  inconvenient.  The  clauses 
of  the  coronation  charter  which  indicate  most  clearly  its  relation  to  the 
feudal  law  of  its  time  are  3  and  4,  relating  to  wardship  and  marriage. 
These  provisions  are  so  wholly  out  of  accord  both  with  what  we  know 
of  later  English  practice  and  with  the  fundamental  principles  of  feudal- 
ism if  logically  applied,  and  they  are  at  the  same  time  so  clear  in  them- 
selves and  so  significant  of  contemporary  facts  that  they  furnish  the 

[36] 


GENERAL  INTRODUCTION 

an  evidence  of  the  weakness  of  the  king  at  the  begin- 
ning of  his  reign.  It  was  a  bid  for  support,  virtually 
extorted,  and  it  would  certainly  be  maintained  in 
force,  or  such  parts  of  it  as  hampered  free  royal 
action,  only  so  long  as  the  king  remained  weak.22 
The  period  during  which  Anglo-Norman  feudalism, 
considered  from  our  present  point  of  view  as  a  part 
of  the  constitutional  system  of  the  state,  was  at  its 

most  useful  starting  point  for  a  study  of  the  charter  as  a  feudal 
document. 

22  We  may,  perhaps,  go  so  far  as  to  say  of  the  charter  of  Henry  I.  that 
the  extreme  severity  with  which  the  kings  enforced  their  feudal  rights 
and  pushed  them  to  the  utmost  limits,  as  in  the  case  of  wardship  and 
marriage,  had  forced  the  baronage,  with  no  very  clear  consciousness  of 
the  abstract  relations  of  their  action,  to  begin  to  study  the  question  of  the 
king's  rights  from  their  own  point  of  view,  and  to  endeavor  to  define  and 
limit  them  by  specific  formulation.  The  charter  of  Henry  I.  as  a  state- 
ment of  feudal  public  law  is  crude  and  incomplete.  It  could  not  be 
otherwise  considering  its  date,  and  it  is  but  slightly  more  so  than  the 
similar  statements  of  both  public  and  private  feudal  law  which  were 
made  at  about  the  same  time  in  Italy;  but  its  purely  practical  character 
is  evident  at  a  glance.  It  is  an  attempt  by  definition  of  existing  rights 
to  check  a  development  of  them  in  favour  of  the  king  which  the  barons 
had  reason  to  fear  had  already  begun.  That  progress  in  this  direction 
was  made  during  the  following  century  is  evident  both  in  the  far  greater 
clearness  of  conception  and  statement  in  Magna  Carta,  and,  in  a  differ- 
ent way,  in  the  assertion  at  about  the  same  time  that  feudal  obligations 
in  England  did  not  include  service  in  France — a  claim  which  the  recog- 
nized feudal  law  of  the  beginning  of  the  century  would  not  warrant.  I 
would  not  insist  too  strongly  upon  the  distinction  between  public  and 
private  law,  for  it  is  true  that  it  does  not  exist  in  feudal  in  the  same 
way  that  it  does  in  other  systems  of  law,  that  the  feudal  system  is,  as 
it  has  been  called,  a  usurpation  of  the  domain  of  public  by  private  law; 
and  yet,  if  the  distinction  is  not  pushed  too  far,  it  is  useful  and  for 
certain  purposes  necessary.  There  is  a  sense  in  which  the  curia  of  the 
king,  apart  from  the  exercise  through  it  of  the  prerogative,  is  a  different 
thing  from  the  curia  of  a  minor  baron,  though  no  line  of  institutional 
difference  can  be  drawn  between  them.  On  the  charter  of  Henry  I.,  see 
the  article  of  Professor  Henry  L.  Cannon,  A.  H.  R.,  XV.  37-46. 

[37] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

height,  is  that  which  extends  from  the  battle  of 
Tinchebrai,  in  1107,  to  the  beginning  of  Henry  II.'s 
attack  upon  the  chief  bulwark  of  baronial  inde- 
pendence— the  feudal  court.  If  we  are  to  give  this 
last  a  specific  date  it  should  probably  be  that  of  the 
Assize  of  Clarendon,  1166,  but  the  dates  are  not 
intended  to  be  exact.23  Henry  I.  probably  felt  him- 
self at  liberty  to  do  as  he  pleased  after  the  failure  of 
the  baronial  insurrection  in  1101,  or  at  least  after  the 
overthrow  of  Robert  of  Belleme,  and  if  Henry  II.'s 
direct  attack  upon  the  feudal  court  had  not  already 
begun  before  1166,  it  had  been  clearly  foreshadowed 
in  the  writ  of  right  and  other  writs  occasionally  in 
use.  In  the  development  of  the  rights  of  the  suzerain 
which  followed  the  victory  of  Henry  I.  and  which 
was  thenceforth  uninterrupted  even  by  the  com- 
promise of  the  investiture  conflict,  all  suzerains,  the 
king's  vassals  with  reference  to  their  vassals,  shared 
alike,  so  far  as  the  advantage  gained  was  financial, 
but  the  king's  gain  was  far  more  important  than  any 
immediate  increase  of  revenue.  For  him  it  was  a 
transformation  of  the  theory  of  Domesday  Book  of 
final  royal  ownership  into  a  reality,  not  in  the  way 
of  economic  enjoyment,  but  of  potential  government. 
It  meant  the  royal  right  of  control,  made  clear  and 

23  One  might  assert  for  the  date  1166  as  good  a  claim  as  for  any  in  history 
to  be  considered  a  hard  and  fast  boundary  line,  marking,  as  it  seems  to 
do  with  the  beginning  of  Henry  II.'s  legislative  activity,  the  exact  divid- 
ing point  between  the  first  Anglo-Norman  century,  which  begins  with 
1066,  and  the  second,  which  closes  with  1265. 

[38] 


GENERAL  INTRODUCTION 

enforced  over  all  the  land  of  the  kingdom,  and  as  the 
land  was  the  basis  of  the  feudal  relationship  and  of 
the  feudal  services  through  which  government  was 
operated,  it  meant  the  final  right  of  the  king  to  deter- 
mine how  services  should  be  rendered  and  how  far 
other  rights  should  extend.24  Without  a  clear  per- 
ception by  king  and  barons  alike  of  the  relation  of 
the  king  to  the  land  in  whose  hands  soever  it  might 
be,  the  establishment  of  such  a  practice  as  scutage 
and  the  triumph  of  royal  justice  over  feudal  would 
have  been  more  difficult. 

The  reign  of  Stephen  is  an  interruption  and  a 
temporary  reaction.  The  sort  of  feudalism  which 
affected  many  other  countries,  baronial  feudalism, 
separatist  feudalism,  instead  of  feudalism  under 
strong  central  control  and  in  the  service  of  the  state, 
had  then  an  opportunity  in  the  Anglo-Norman 
world.  But  the  only  serious  loss  which  resulted  was 
in  the  state's  control  of  the  church,  and  this  was  not 
entirely  a  feudal  matter.  So  far  as  the  feudal  baron 
proper  is  concerned,  Henry  II.  was  able  in  a  few 
years  to  reestablish  completely  his  grandfather's 

24  This  is  to  be  regarded,  I  think,  as  the  first  increase  of  royal  power 
after  the  Conquest  which  can  be  called  constitutional,  that  is,  in  law  and 
institutions.  The  failure  of  the  attempts  of  the  earls  under  William  I. 
and  of  the  more  general  insurrections  at  the  beginning  of  the  reigns  of 
William  II.  and  Henry  I.,  together  with  the  complete  overthrow  of  the 
house  of  Belleme  in  England,  no  doubt  strengthened  the  king's  power  in 
its  practical  operation,  that  is,  they  would  make  resistance  and  an  appeal 
to  rebellion  less  likely,  but  this  cannot  be  regarded  as  a  constitutional 
increase  of  power. 

[39] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

power  and  then  to  go  on  by  means  of  it  to  develop 
the  institutions  of  royal  centralization  and  abso- 
lutism along  the  way  his  grandfather  had  pointed 
out  but  had  not  been  able  himself  to  follow  to  any 
permanent  attainment. 


[40] 


GENERAL  INTRODUCTION 

NOTE  A.     THE  LIMITED  MONARCHY  AND  THE  CONSTITUTION 

(Page  2.} 

BY  the  English  limited  monarchy  is  not  meant  merely  a  monarchy 
in  which  the  king  cannot  do  as  he  pleases.  There  have  been  many 
such  in  history,  more  or  less  permanent.  The  essential  and  pecu- 
liar character  of  the  English  Constitution  is  that  the  king  has 
remained  in  theory  and  in  the  letter  of  the  law  absolute;  he  is 
still  in  form  the  source  of  all  authority,  the  acts  of  the  govern- 
ment are  his  acts,  the  officers  of  the  state  are  his  servants,  while 
in  reality,  by  various  institutions,  statute  laws,  and  conventional 
practices  having  the  force  of  law,  he  has  been  hedged  about  by 
limitations,  and  the  true  sovereignty,  the  final  power  of  decision 
in  all  questions  of  importance,  has  been  transferred  to  the  people 
who  form  the  nation  and  who  act  through  their  elected  repre- 
sentatives. The  constitution  as  a  whole  is  made  up  of  the  insti- 
tutions, laws,  and  practices  through  which  the  nation  acts  and 
expresses  its  will,  but  the  one  thing  which  gives  unity  and  system 
to  all  these  is  the  limited  monarchy,  or,  to  use  the  other  term 
by  which  we  commonly  call  it,  the  constitutional  monarchy — a 
monarchy  acting  under  a  constitution. 

When  we  speak  of  the  English,  or  the  Anglo-Saxon  constitu- 
tion in  these  days,  using  the  words  as  a  generic  term,  we  refer, 
therefore,  to  that  type  of  constitutional  government  which  rests 
upon  the  sovereignty  of  the  people,  expressing  itself  through 
elected  representatives,  who  in  their  corporate  capacity  as  a  legis- 
lature, hold  under  a  strict  control  the  executive  authority  which 
is  nevertheless  in  theory  very  strong.  That  is  at  least  the  sense 
in  which  I  use  the  term  in  the  title  of  this  book.  It  might  be 
thought  more  accurate  to  say  that  I  am  treating  of  the  origin 
of  the  English  limited  monarchy,  since  it  was  by  the  evolution 
of  that  feature  that  the  institutional  history  of  England  was 
turned  into  a  road  of  its  own  and  all  the  peculiar  features  of  the 
constitution  either  brought  into  it,  or  kept  from  disappearance. 
But  if  we  once  undertake  to  separate  the  distinctive  features  of 

[41] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

the  English  Constitution  which  are  due  to  the  development  of  the 
limited  monarchy  from  those  that  are  not,  we  shall  find  so  little 
of  essential  importance  left  in  the  second  class  that  it  will  hardly 
seem  worth  while  to  make  the  distinction.  The  English  Consti- 
tution, as  something  different  from  other  constitutions,  is  marked 
by  a  strong  monarchical  or  executive  authority  limited  by  the  ulti- 
mate sovereignty  of  the  people  vested  in  the  legislature,  and  that 
is  what  we  mean  by  the  term  when  we  use  it  with  discrimination. 
It  is  indeed  true  that  an  extreme  expression  in  constitutional  form 
of  the  principle  of  the  sovereignty  of  the  people  is  to  be  found 
in  those  limitations  upon  the  right  of  the  legislative  assembly 
which  are  embodied  in  the  constitution  of  the  United  States  and  in 
many  state  constitutions  as  well.  And  it  appears  to  me  certain 
that  it  is  from  this  limitation  of  legislative  right  that  there  has 
been  developed,  as  a  practical  matter,  that  peculiar  feature  of 
the  American  unwritten  constitution,  the  power  of  the  judiciary 
to  declare  laws  regularly  adopted  to  be  void  because  unconsti- 
tutional, though  such  a  development  was  made  easier  by  a  natural 
tendence  of  a  similar  sort  from  early  times,  as  has  been  so  ably 
shown  by  Professor  Mcllwain  in  his  High  Court  of  Parliament. 
But  although  the  United  States  has  gone  beyond  the  English 
model,  the  result  is  only  a  logical  development  of  English  funda- 
mental principles  and  requires  no  modification  of  our  definition. 
The  American  constitutions  with  these  features  included  are 
Anglo-Saxon. 

In  this  book  the  term  refers  to  the  national  constitution  only. 
The  local  constitution  is  necessarily  excluded,  and  properly,  since 
under  this  type  of  national  government  any  kind  of  local  consti- 
tution is  possible,  from  the  centralization  of  France  to  the  Ameri- 
can federal  system  with  the  complete  independence  in  some  par- 
ticulars of  the  state  governments  and  even  of  the  smallest  local 
unit.  There  will  be  found  here  then  no  discussion  of  local  insti- 
tutions in  themselves,  though  at  many  points  they  are  necessarily 
involved  in  the  history  of  national  institutions,  and  unless  the 
contrary  is  specifically  indicated  conclusions  refer  to  national 
rather  than  to  local  government. 

[42] 


GENERAL  INTRODUCTION 

The  construction  of  this  constitution  is  also  to  be  considered  the 
great  achievement  of  English  history,  for  the  Empire,  which  prob- 
ably should  be  placed  beside  it  as  an  equally  great  creation,  is  to 
be  reckoned  British  rather  than  English.  But  the  limited  king- 
ship is  the  work  of  England  alone.  It  may  be  called  also  without 
too  great  exaggeration,  if  not  the  greatest,  one  of  the  greatest 
political  achievements  of  any  race  or  time.  The  opposite  trans- 
formation, which  occurred  in  Roman  history,  by  which  a  republic, 
while  retaining  the  name  and  forms  of  a  republic,  was  changed 
into  an  absolute  monarchy,  gave  rise  to  a  government  and  a  sys- 
tem of  law  which  for  centuries  exercised  the  most  profound  politi- 
cal influence  at  work  in  the  civilized  world,  and  is  even  today  a 
powerful  force.  But  the  type  of  constitution  which  England 
evolved,  as  new  to  human  experience  as  was  the  Roman  in  the  first 
Christian  century,  has  been  copied  more  or  less  closely  through 
vastly  wider  regions  than  the  Roman.  Whether  it  will  be  as  per- 
manent an  influence  measured  in  centuries  remains  of  course  to  be 
seen. 

It  may  be  added  that  the  English  Constitution,  in  the  form  in 
which  it  began  to  influence  races  other  than  our  own,  was  the 
product  of  a  long  and  slow  growth.  It  was  not  struck  out  at  a 
blow  nor  made  by  the  effort  of  any  generation.  If  we  look  back 
over  the  whole  life  of  the  English  nation  to  the  Norman  Conquest, 
that  is,  to  the  date  when  the  last  of  the  constituent  elements  of 
the  nation  entered  and  took  its  place  beside  the  others,  we  are 
struck  by  its  steady  and  continuous  character.  There  were  no 
revolutions  which  deflected  the  current  of  the  history.  Revolu- 
tions occur  in  plenty,  as  frequently  perhaps  as  in  the  life  of  any 
people,  but  what  they  do  is  to  clear  the  channel  of  obstructions, 
as  in  the  seventeenth  century,  not  to  change  the  direction  of  the 
stream.  The  revolution  over,  the  work  of  constitution  making  is 
found  to  be  going  on  as  it  was  before  only  with  greater  freedom, 
with  something  out  of  the  way  which  had  held  it  back.  Epochs 
we  can  mark  out  in  this  process  of  growth,  but  we  do  it  rather 
by  noting  differences  after  long  periods  than  by  finding  sudden 
advances  or  instantaneous  changes. 

[43] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

In  a  growth  so  uninterrupted,  scarcely  to  be  detected  at  any 
given  moment  and  intimately  a  part  of  the  nation's  life,  the  ques- 
tion of  origins  is  one  of  great  difficulty.  A  beginning  is  hardly 
to  be  found,  or  a  point  where  one  can  say  with  certainty,  here 
enters  this  thing  which  is  new  and  which  makes  all  that  follows 
different.  Beginning  is  transformation,  and  where  the  moment 
of  transformation  occurs  can  be  detected,  if  at  all,  only  by  the 
most  careful  scrutiny  which  searches  forward  and  backward  from 
the  ends  of  an  epoch  and  examines  principle  as  well  as  form  in 
what  is  changing. 

NOTE  B.     ANGLO-SAXON  FEUDALISM  AND  POLITICAL  AND 
ECONOMIC  FEUDALISM 

(Page  18.} 

ON  Anglo-Saxon  feudalism  in  general,  I  would  refer  to  my  article 
in  the  American  Historical  Review,  VII.  11-35  (1901).  The  pur- 
pose of  that  article  seems  to  have  been  misunderstood  by  some 
at  least  who  have  written  me  privately  in  regard  to  it.  As  vir- 
tually stated  in  the  note  on  page  16,  it  was  not  written  with  the 
intention  of  making  an  original  contribution  to  our  knowledge  of 
the  subject.  My  command  of  the  materials  necessary  for  the 
purpose  was  and  is  too  limited  to  justify  such  an  ambition.  The 
article  was  intended  merely  to  call  attention  to  the  fact  that  no 
evidence  had  yet  been  brought  forward  to  show  the  existence  of 
institutional  feudalism  proper  in  England  down  to  the  date  of 
the  Conquest.  No  evidence  has  been  produced  since  it  was  written 
to  change  the  opinions  there  expressed.  To  my  mind  the  two 
strongest  pieces  of  evidence  which  have  ever  been  used  to  show 
the  existence  of  real  feudalism  in  Anglo-Saxon  times  are  the  oath 
of  a  man  to  his  lord,  Liebermann,  Gesetze,  I.  396,  No.  1,  and 
Bishop  Oswald's  letter,  Kemble,  Codex  Diplomaticus,  VI.  124; 
Birch,  Cartularium,  No.  1136;  Penn.  TransL,  IV.  8;  cf.  Mait- 
land,  Domesday,  pp.  304  ff.  I  leave  one  side  the  question  of  the 
authenticity  of  this  letter.  See  Round,  Victoria  County  History, 

[44] 


GENERAL  INTRODUCTION 

Worcester,  p.  250.  The  first  of  these  documents  implies  a  rela- 
tionship between  the  lord  and  his  man  very  closely  parallel  to  that 
which  existed  in  early  stages  in  the  development  of  the  vassal 
relationship  in  the  Frankish  state,  in  that  shown  by  the  patro- 
cinium  formula  preserved  in  the  Form.  Turonenses,  No.  43 
(Zeumer,  I.  158;  Roziere,  I.  69;  Penn.  Transl.,  IV.  3),  for  ex- 
ample. While  I  think  it  can  be  shown  that  the  Saxon  form'  is 
fully  accounted  for  by  a  development  of  primitive  German  ideas, 
and  that  no  supposition  of  Roman  institutional  influence  is  neces- 
sary to  account  for  it,  the  differences  implied  concern  rather  the 
relation  of  the  whole  institutional  situation  of  which  it  is  a  part 
to  the  general  government  than  the  practical  results  as  affecting 
individuals.  If  any  one  should  be  disposed  on  the  basis  of  these 
two  formulas  to  identify  the  Saxon  and  the  Frankish  practices  in 
their  immediate  personal  results,  there  would  be  no  serious  objec- 
tion that  could  be  made.  To  apply  the  word  vassal  to  the  Saxon 
relationship  would  not  be  inaccurate,  for  it  is  used  of  equally 
undeveloped  relationships  in  the  Frankish  state.  The  only  valid 
objection  to  its  use  is  that  to  the  mind  that  does  not  make  dis- 
tinctions it  is  likely  to  imply  more  than  is  intended. 

As  to  what  is  implied  in  Bishop  Oswald's  letter,  there  is  no 
necessity  of  conceding  even  so  much.  That  leases  like  those 
described  in  this  letter,  and  the  resting  of  military  duty  upon  the 
land,  as  described  in  the  customs  of  Berkshire  in  Domesday,  I.  56 
(Stubbs,  S.  C.,  p.  91),  created  a  condition  of  things  which  could 
very  easily  be  transformed  into  a  true  feudal  arrangement,  is  one 
thing;  that  the  arrangement  was  in  itself  truly  feudal  is  not 
apparent. 

As  I  have  said  in  the  text,  it  is  this  that  we  can  say,  and  the 
most  that  we  have  any  right  to  say,  that  there  existed  at  the  close 
of  the  Anglo-Saxon  period,  a  condition  of  things  which  could 
be  very  easily  and  naturally  transformed,  with  no  sense  of  violent 
change,  into  a  true  feudal  organization  of  the  state.  If  such  a 
feudal  organization  had  existed  under  Edward  the  Confessor 
the  evidence  of  it,  in  the  amount  of  Anglo-Saxon  material  which 
we  possess,  would  have  been  so  clear  as  to  admit  of  no  question. 

[45] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

It  is,  I  believe,  no  more  than  this  which  Professor  Vinogradoff 
means  when  he  says  of  knight  service  that  its  roots  run  back  into 
Saxon  times,  The  Eleventh  Century,  p.  79.  But  the  phrase  is 
open  to  the  same  objection  as  that  suggested  to  the  use  of  the 
word  vassal.  It  seems  to  imply  that  knight  service  grows  out  of 
some  Saxon  relationship  as  one  of  the  sources  of  its  being.  Such 
an  interpretation  would  be,  I  believe,  incorrect.  The  roots  of 
knight  service  in  that  meaning  run  back  into  the  Prankish  empire 
and  into  that  only.  If  the  metaphor  had  been  that  of  resting  for 
its  foundation  in  part  upon  Saxon  customs,  there  could  be  no 
objection  to  it. 

To  put  the  matter  in  another  way:  Maitland  and  Vinogradoff 
have  shown  clearly  and  in  many  details  the  drift  towards  prac- 
tices of  a  feudal  character  in  Anglo-Saxon  England.  Their 
studies  make  it  certain  that,  on  the  side  of  economic  arrange- 
ments, the  organization  of  agriculture,  the  development  of  lord- 
ship over  the  cultivating  class,  the  absorption  of  smaller  in  larger 
estates,  a  steady  current  set  towards  the  manorial  system.  Defer- 
ring for  the  moment  the  question  of  the  survival  of  Roman  mano- 
rial forms,  it  is  not  necessary  for  us  to  take  sides  here  upon  the 
other  question  as  to  what  extent  they  served  as  a  model  in  Anglo- 
Saxon  changes,  nor  to  say  how  far  an  exact  manorial  system, 
according  to  the  pattern  of  the  twelfth  century,  had  come  into 
existence  before  1066.  If  we  accept  the  views  of  Vinogradoff 
rather  than  those  of  Seebohm  on  these  matters,  we  only  make  the 
changes  produced  by  the  Conquest  more  extensive  and  wider,  and 
somewhat  analogous  on  the  economic  side  to  those  on  the  political. 
On  the  other  side  of  feudalism,  the  political  proper,  these  studies 
have  also  shown,  particularly  those  of  Maitland,  many  practices 
becoming  established  in  Saxon  England  which  border  closely  on 
political  feudalism  and  are  parallel  to  practices  in  the  Frankish 
society  of  the  Carolingian  age  when  feudalism  was  forming.  The 
growth  of  private  jurisdiction,  the  association  of  military  service 
with  land,  and  the  possible  transfer  of  the  responsibility  for  mili- 
tary service  to  the  tenant  in  land  leases,  appear  at  first  sight  to 
show  as  steady  a  drift  towards  political  feudalism  as  facts  of  the 

[46] 


GENERAL  INTRODUCTION 

other  kind  towards  economic.  A  careful  study,  however,  of  form- 
ing feudalism  in  the  Frankish  state  makes  it  evident  that  the 
peculiar  economic  and  political  conditions  which  prevailed  over 
Europe  from  the  fourth  century  to  the  tenth  produced  a  number 
of  groups  of  peculiar  institutional  forms  adapted  to  meet  the 
more  or  less  permanent  needs  of  different  sorts  which  arose  from 
those  conditions,  and  often  in  appearance  closely  related  to  one 
another;  that  some  of  these  forms  speedily  perished;  that  others 
survived  and  passed  on  to  later  times ;  that  among  those  surviving 
was  one  group  of  institutions  which,  by  the  importance  of  the 
relationships  and  of  the  classes  which  it  primarily  concerned,  at 
once  obtained  a  controlling  position  in  the  age  that  followed  its 
origin,  drew  under  its  influence  and  moulded  into  a  great  system 
the  other  institutions  that  had  survived  like  itself,  and  stamped 
its  impress  upon  all  the  features  of  an  age  which  we  call  the  age 
of  feudalism  because  this  dominating  and  controlling  element 
was  the  feudal  system  proper,  the  system  in  which  the  fief  was  a 
fundamental  element.  Nothing  which  belongs  in  this  main  line 
of  feudal  development  has  been  shown  to  exist  in  Saxon  England 
with  the  possible  exception  of  the  man's  oath  referred  to  above. 

Private  jurisdiction  which,  considered  as  manorial  and  public 
jurisdiction,  is  one  of  the  things  adopted  from  outside  by  form- 
ing feudalism,  not  created  by  it,  finds,  for  instance,  one  of  its 
most  common  sources  in  the  disciplinary  power  of  the  lord  to 
keep  order  and  settle  disputes  among  his  unfree  tenants,  an  out- 
growth of  his  economic  position.  As  the  manorial  system 
develops,  this  power  increases  in  importance,  and  draws  by 
degrees  under  itself  the  free  inhabitants  within  the  lord's  terri- 
tory and  begins  to  have  a  political  aspect  in  one  regard.  At 
last  when  the  estate  had  absorbed  all  or  nearly  all  of  the  hundred, 
it  may  very  likely  have  seemed  absurd  to  maintain  two  separate 
courts  for  the  same  community,  or  perhaps  more  accurately,  it 
seemed  the  simplest  and  most  natural  thing  to  do  to  transfer  to 
the  lord  in  form  the  responsibility  for  the  public  jurisdiction  of 
the  hundred  which  was  already  almost  all  in  his  hands  in  prac- 
tice. This  brings  together  clearly  in  Saxon  times  two  of  the 

[47] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

three  distinct  types  of  private  jurisdiction  of  the  feudal  age,  the 
manorial  proper  chiefly  economic  in  character,  and  the  public 
jurisdiction  of  the  smaller  territorial  divisions,  transferred  to 
private  hands,  but  not  thereby  changed  in  character  or  scope.  Of 
the  existence  of  the  third  type  in  Saxon  England,  the  feudal 
jurisdiction  proper,  as  that  is  denned  by  the  feudal  codes,  no 
particle  of  evidence  has  ever  been  produced  so  far  as  I  know. 
The  same  thing  is  to  be  said,  I  think,  of  the  other  practices  which 
constitute  institutional  feudalism  proper.  Or,  if  any  one  objects 
that  this  is  too  strong  a  statement  considering  the  admissions 
made  in  the  first  paragraph  of  this  note,  it  can  at  least  be  said 
that  no  evidence  has  yet  been  produced  which  compels  us  to 
admit  the  existence  in  Saxon  England  before  1066  of  institutional 
feudalism  proper  in  anything  beyond  the  early  stages  of  its 
development.  Many  generations  of  growth  would  have  been 
needed,  barring  the  sudden  stimulus  of  outside  influence,  to  bring 
the  customs  of  which  we  know  anything  into  such  a  stage  of 
union  and  of  maturity  as  the  feudalism  of  the  Conquest  displays. 
For  evidence  of  the  continuation  in  the  Prankish  Empire  on  into 
a  time  when  feudalism  proper  was  taking  on  its  final  form,  into 
the  tenth  and  eleventh  centuries,  of  the  great  variety  of  closely 
allied  forms  of  land  loans,  partially  economic  and  partially  politi- 
cal, which  characterize  the  earliest  periods  of  forming  feudalism 
and  lie  all  about  the  direct  line  of  its  descent,  see  Seeliger,  Die 
Soziale  u.  Politische  Bedeutung  der  Grundherrschaft  im  Friiheren 
Mittelalter,  in  Bd.  XXII.  d.  Phil.-Hist.  Klasse  d.  K.  Sachsischen 
Gesellschaft  d.  Wissenschaften,  and  separately,  1903. 

In  regard  to  the  origin  of  the  manorial  system  it  may  be  added 
that  since  the  work  of  M.  Fustel  de  Coulanges  was  published  in 
its  final  form  in  a  volume  entitled  L'Alleu  et  le  Domaine  Rural 
in  1889,  much  attention  has  been  given  to  the  subject  by  Euro- 
pean scholars.  The  result  is  that,  while  we  can  say  that  M.  Fustel 
de  Coulanges  assigned  a  larger  share  in  producing  the  results 
he  described  to  certain  economic  forces  than  his  predecessors  had 
done,  the  newer  studies  have  shown  the  operation  of  influences 
of  like  kind  which  he  overlooked,  and  tend  to  modify  his  conclu- 

[48] 


GENERAL  INTRODUCTION 

sions  in  some  important  ways.  The  results  of  the  new  studies 
have  been  fully  presented  to  English  readers  in  Professor  Paul 
Vinogradoff's  The  Growth  of  the  Manor  (1905).  This  book  is 
likely,  however,  to  give  the  reader  the  impression  that  M.  Fustel's 
conclusions  must  be  more  seriously  modified  than  really  is  the 
case.  It  has  been,  I  think,  clearly  shown  that  he  allowed  rela- 
tively too  large  a  share  in  the  final  product  to  legal  factors,  and 
that  he  fixed  the  date  at  which  the  manorial  system  had  taken 
possession  of  practically  all  the  soil  somewhat  too  early.  But 
it  should  not  be  overlooked  that  nothing  in  the  new  studies  tends 
to  prove  that  the  influences  upon  which  M.  Fustel  laid  the  greatest 
emphasis  did  not  exist  as  important  elements  of  the  situation,  or 
to  show  that  they  did  not  produce  the  results  ascribed  to  them. 
The  legal  and  institutional  factors  must  still  be  allowed  large 
share  in  the  final  product,  only  we  must  recognize  that  that  pro- 
duct is  a  resultant  of  a  larger  number  of  forces  than  he  took  into 
account  and  that  consequently  it  must  be  described  in  somewhat 
different  terms  and  with  somewhat  different  emphasis.  Nor  has 
anything  been  produced  to  show  that  the  manorial  system  was 
not  in  existence  with  all  its  essential  features  under  the  Romans ; 
what  has  been  shown  is  that  it  by  no  means  occupied  all  the  soil 
in  the  early  periods  of  feudal  growth,  but  that  systems  of  agri- 
cultural organization  of  essentially  different  origin  existed  along- 
side it,  especially  the  system  of  the  village  community,  and  that 
these  different  systems  were  especially  features  of  the  country 
in  Britain.  It  must  also  be  noticed  that  the  evidence  for  the  new 
conclusions  is  much  less  in  amount  and  considerably  less  definite 
than  the  legal  and  institutional  evidence.  The  new  investigations 
also  are  to  a  much  larger  extent  dependent  upon  inference  for 
their  results.  I  do  not  intend  to  imply  that  the  evidence  is  insuffi- 
cient or  the  inferences  not  well  founded,  but  merely  that  to  con- 
temporaries of  the  fall  of  Rome  this  side  of  things  did  not  bulk 
so  large,  that  these  influences  were  more  unnoticed  and  escaped 
the  records  except  here  and  there.  Personally  the  evidence  is 
satisfactory  to  me.  I  have  never  been  able,  for  instance,  to  accept 
M.  Fustel's  interpretation  of  Title  XLV.  of  the  Salic  law,  which 

[49] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

seems  to  me  to  show  clearly  the  existence  of  the  village  commu- 
nity alongside  the  manor.  The  best  of  the  more  recent  accounts 
of  these  relations  which  accepts  the  conclusions  of  M.  Fustel  de 
Coulanges  is  See,  Leg  Classes  Rurales  (1901).  See  M.  Esmein's 
most  recent  expression  of  his  views  on  some  of  these  points,  to 
be  included  in  a  new  edition  of  his  Histoire  du  Droit  Francois, 
in  the  Nouv.  Rev.  Hist,  de  Droit  Franqais  et  Stranger,  May- 
June,  Ipll,  pp.  331-347. 

I  may  add  that  to  me  it  appears  that  a  failure  to  make  clearly 
the  distinction  between  economic  and  political  feudalism  is,  in 
part  at  least,  responsible  for  a  somewhat  distorted  view  of  the 
character  of  Anglo-Saxon  feudalism.  The  drift  in  Saxon  Eng- 
land towards  feudalism  on  the  economic  side  was  so  much  stronger 
and  the  results  reached  were  so  much  more  nearly  final  that, 
unless  one  sees  clearly  that  institutional  feudalism  proper  did  not 
originate  in  such  arrangements,  more  definite  language  may  easily 
be  used  than  can  successfully  be  defended.  If  one  looks  only  to 
the  economic  and  the  social,  and  lays  little  emphasis  on  the 
strictly  legal  and  institutional,  or  if  one  holds  that  identity  of 
practical  result  implies  identity  of  institutional  foundation,  it  is 
easy  to  believe  that  the  essentials  of  feudalism  proper  existed  in 
England  before  1066. 

That  the  terms  political  and  economic  feudalism,  which  I  used 
for  this  distinction  in  Vol.  II.  of  The  Political  History  of  Eng- 
land, pp.  14-19,  are  open  to  objection,  I  am  fully  aware,  but  I 
know  of  no  names  in  which  the  distinction  may  be  expressed 
which  are  not.  In  my  article  on  Anglo-Saxon  feudalism  in  the 
American  Historical  Review  referred  to  above,  I  used  the  term 
feudalism  proper  for  the  political  side.  The  French  writers,  who 
have  drawn  this  distinction  more  clearly  than  any  others,  have 
used  the  term  seigneurial  or  domanial  for  the  economic  side  and 
vassalic  or  feudal  for  the  other.  Says  Ferdinand  Lot  in  a  book 
review:  ....  la  confusion  inattendue  de  la  part  de  1'auteur, — 
entre  la  regime  domanial  et  le  regime  vassalique  (je  n'emploie 
pas  le  term  feodal  que  prete  a  toutes  sortes  de  confusions).  Le 
premier  n'entrainait  pas  forcement  le  second,  bien  qu'il  le 

[50] 


GENERAL  INTRODUCTION 

preparat  merveilleusement.  Moyen  Age,  VI.  25.  J'appelle 
regime  domanial  tout  1'ensemble  d'institutions  sociales  qui  mar- 
quent  les  relations  du  seigneur  proprietaire  avec  les  paysans  de 
toute  condition  qui  cultivent  la  terre.  II  convient  de  le  distinguer 
nettement  du  regime  feodal,  qui  designe  les  rapports  de  vassalite 
entre  proprietaires,  rapports  de  nature  plutot  politique  que 
sociale.  H.  See,  Seances  de  I' Academic,  CLI.  508  (1899).  See 
further,  See,  Classes  Rurales,  pp.  22-27,  104-107,  110,  302; 
Esmein,  Histoire  du  Droit  Frangais,  pp.  211-212. 

These  are,  I  think,  less  satisfactory  terms  than  political  feu- 
dalism, which  expresses  clearly  enough  what  was  the  chief  pur- 
pose, the  determining  characteristic  of  this  side  of  the  feudal 
system,  and  economic  feudalism  which  does  so  of  the  other  side. 
The  chief  objection  to  these  terms  is  that  on  one  side  certain 
functions  which  are  plainly  enough  political,  like  local  police 
jurisdiction,  or  even  an  entire  local  popular  court,  seem  to  get 
inextricably  mixed  with  the  economic  organization,  as  if  they 
really  belonged  in  it,  and  historically  the  mixture  actually  does 
take  place  in  some  cases  before  the  advent  of  political  feudalism. 
On  the  other  hand,  also,  such  money  payments  as  reliefs  and  aids 
belonging  to  political  feudalism  seem  at  first  glance  to  have  an 
economic  character,  though  we  readily  enough  recall  the  fact, 
indicated  by  Magna  Carta,  c.  2,  that  reliefs  from  tlie  same  feudal 
unit,  the  barony  or  the  knight's  fee,  are  equal  without  reference 
to  the  size  or  value  of  the  holdings  among  themselves.  Carefully 
considered,  neither  of  these  considerations  is,  however,  a  real 
objection.  Neither  indicates  a  real  variation  of  character  in  the 
system  to  which  it  belongs.  They  disclose,  however,  what  is  the 
most  serious  difficulty  in  getting  an  intimate  knowledge  of  feu- 
dalism,— the  difficulty  of  being  misled  by  superficial  appearances, 
and  until  one  can  see  through  these  and  other  like  mysteries, 
especially  until  the  mixture  of  jurisdiction  is  no  longer  a  puzzle, 
there  will  always  be  some  confusion  of  mind  about  the  facts  of 
feudalism.  When  this  difficulty  has  been  overcome,  there  will 
no  longer  be  felt  any  fatal  objection  to  the  terms  political  and 
economic  feudalism. 

[51] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

In  the  feudal  system  as  it  was  practically  operated,  the  point 
where  political  and  economic  feudalism  came  into  contact  with 
one  another,  the  common  foundation  upon  which  both  sides  were 
built,  was  the  domain  manor.  If  we  may  be  allowed  to  leave  out 
of  account  a  few  exceptional  cases,  which  do  not  affect  the  general 
condition  of  things,  this  aspect  of  feudalism  may  be  described  as 
follows.  Practically  every  manor  in  England  is  a  domain  manor 
at  some  point,  higher  or  lower  in  the  hierarchy  of  fiefs,  as  itself 
forming  a  knight's  fee  or  being  one  of  the  domain  manors  of  a 
barony.  As  such,  as  a  domain  manor,  the  purpose  for  which  it 
is  held  in  hand  and  exploited  is  wholly  economic.  If  it  is  a 
knight's  fee,  the  income  derived  from  it  is  what  supports  the 
knight  and  his  family  and  enables  him  to  fulfill  his  feudal  obli- 
gations. If  it  is  one  of  the  manors  held  in  hand  by  a  lord  higher 
in  the  feudal  scale,  the  purpose  of  its  retention  and  exploitation 
is  to  provide  the  income  by  which  the  baron  may  meet  such  of  his 
military  servitium  debitum  as  has  not  been  provided  for  by  sub- 
infeudation,  may  be  able  to  perform  his  other  feudal  duties,  and 
maintain  his  rank  in  the  society  of  his  time.  The  chief  support 
which  maintains  the  feudal  world  from  the  king  down  is  the 
domain  manor.  But  at  the  same  time  these  manors  form  in  one 
sense  the  unit,  and  in  every  sense  the  foundation,  of  the  system 
of  non-economic  services  and  duties  by  which  the  business  of 
government  is  carried  on,  that  is,  political  services.  The  domain 
manor  is  in  many  cases  identical  with  the  knight's  fee.  As 
knight's  fee  it  stands,  however,  in  a  quite  different  set  of  relation- 
ships from  those  in  which  it  stands  as  domain  manor,  and  this  is 
equally  true  if  it  is  one  of  the  domain  manors  of  a  barony.  It 
is  from  this  other  side  not  regarded  as  the  source  of  income,  but 
of  military  service,  of  the  widely  comprehensive  court  service, 
of  certain  specific  aids,  and  of  all  that  was  meant  by  fealty.  The 
tenant  in  receiving  it  assumed,  not  an  economic  obligation,  but 
these  services,  and  his  lord  in  granting  it  expected  from  it  assist- 
ance in  meeting  his  obligations  only  in  the  matter  of  military 
service  and  of  certain  aids.  He  did  expect,  also,  and  one  of  the 
chief  things  he  received  was,  increased  political  and  social  in- 

[52] 


GENERAL  INTRODUCTION 

fluence  and  consideration  from  the  possession  of  vassals.  The 
economic  returns  of  the  domain  manor  must  have  been  consider- 
ably more  than  the  cost  of  the  feudal  services  imposed  upon  it, 
or  the  feudal  regime  could  not  have  been  sustained.  The  simplest 
case  is,  of  course,  that  in  which  the  manor  and  the  knight's  fee 
are  identical.  Here  it  should  not  be  difficult  to  see  that  the  same 
manor  is  held  at  once  in  two  different  relationships,  is  exploited, 
if  that  term  can  be  used  of  political  feudalism,  for  two  different 
purposes  and  in  two  different  ways,  and  in  general  belongs  at 
once  in  two  different  systems  which  have  little  in  common,  beyond 
certain  superficial  resemblances  which  admit  of  easy  historical 
explanation,  like  the  common  idea  of  tenure  by  service,  or  the 
appearance  of  such  feudal  incidents  as  homage  and  relief  attached 
to  manorial  holdings.  See  further  The  Political  History  of  Eng- 
land, II.  14-19.  The  same  distinctions  could  be  developed  from 
the  separate  origins  of  these  two  sides  of  feudalism,  if  this  were 
the  place  to  recount  their  history. 

In  attempting  to  understand  the  non-economic  character  of 
political  feudalism,  care  should  be  taken  not  to  be  led  astray  by 
the  economic  interests  which  are  so  plainly  appearing  in  English 
feudalism  in  the  last  half  of  the  thirteenth  century.  They  are 
no  part  of  original  feudalism  but  are  results  of  the  rapid  social, 
economic  and  political  changes  which  characterize  that  century 
as  a  whole.  So  pervading  are  these  changes  and  so  decisive  in 
their  effects,  that  evidence  derived  from  the  thirteenth  century 
as  to  feudal  ideas,  and  the  contemporary  interpretation  of  feudal 
institutions,  and  even  as  to  their  operation,  must  be  used  in  the 
study  of  Anglo-Norman  feudalism  before  1215  with  the  greatest 
circumspection.  To  take  a  specific  case,  private  jurisdiction  both 
baronial  and  manorial,  at  least  the  latter  in  relation  to  the  former, 
was  so  transformed,  certainly  in  the  way  in  which  it  was  regarded 
and  I  think  in  the  way  it  was  operated,  in  the  reign  of  Henry 
III.,  that  the  study  of  documentary  material,  at  least  of  origin 
later  than  1265,  in  order  to  understand  private  jurisdictions  of 
the  twelfth  century  would  be  worse  than  useless  unless  the  fea- 
ture under  observation  can  be  carried  back  practically  unchanged 

[53] 


to  an  earlier  date.  In  fact,  the  whole  thirteenth  century  had 
better  be  left  out  of  account  entirely  until  one  has  obtained  a 
thorough  knowledge  of  what  Anglo-Norman  feudalism  was  before 
the  accession  of  John.  I  may  be  allowed  to  add  that  in  my 
opinion  to  begin  at  the  modern  end,  among  the  survivals  of  feudal 
practices,  and  to  work  back  into  the  age  of  true  feudalism,  is 
almost  necessarily  fatal  to  any  accurate  understanding  of  its 
details.  Such  a  process  certainly  entails  many  misconceptions 
and  wrong  interpretations  which  are  very  likely  never  to  be 
perceived  and  which  can  be  corrected  only  with  great  difficulty. 
The  feudal  is  preeminently  a  period  of  institutional  history  which 
can  be  safely  studied  by  one  who  would  understand  it  as  it  under- 
stood itself,  only  from  the  age  of  origins  on. 


[54] 


CHAPTER  II 

INSTITUTIONAL,  INTRODUCTION 

The  machinery  of  the  Anglo-Norman  state  for 
carrying  on  the  general  government  of  the  country 
during  the  first  century  of  its  existence  was  simple 
in  the  extreme.  Differentiation  of  the  functions  of 
the  state,  like  the  legislative  and  the  judicial,  had  not 
yet  begun  either  in  the  ideas  which  men  had  about 
their  government,  or  in  the  way  things  were  actually 
done,  and  a  single,  simple  set  of  institutions  sufficed 
to  carry  on  all  public  business  from  top  to  bottom. 
To  the  operation  of  these  institutions  there  were 
indeed  numerous  local  and  special  exceptions,  like 
those,  to  cite  one  example,  which  resemble  the  Caro- 
lingian  "immunity,"  known  technically  in  England 
as  the  "liberty";  but  though  important  in  the  indi- 
vidual case,  no  one  of  these  exceptions  had  any 
significance  as  a  real  variation  or  break  in  the  machin- 
ery of  government.  The  government  in  general  was 
conducted  as  it  would  have  been  if  they  had  not 
existed.  There  was,  however,  one  source  of  excep- 
tional institutional  action,  lying  outside  of  what  we 
may  call  the  normal  machinery  of  the  state,  which 
was  of  the  utmost  importance,  rather  in  the  possi- 
bility of  development  which  it  presented  for  the 

[55] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

future  than  from  any  immediate  result — the  royal 
prerogative.  But  during  the  century  which  I  think 
should  be  regarded  as  introductory  to  the  age  of 
growth,  there  was  no  development  of  the  possibilities 
of  the  royal  prerogative  into  anything  like  a  con- 
nected system.  At  least  if  such  a  development  had 
taken  place  the  evidence  of  it  has  not  come  down  to 
us,  and  whatever  may  have  been  accomplished  by 
such  a  development  was  not  permanent.  Consider- 
able growth  occurred  during  the  first  century  in  the 
way  of  beginnings  and  of  preparation,  as  we  shall 
see  later,  and  while  the  evidences  of  this  early  growth 
which  we  find  surviving  at  the  beginning  of  the  reign 
of  Henry  II.  might  possibly  be  the  fragmentary 
remains  of  a  system  which  had  gone  to  pieces,  their 
aspect  is  rather  that  of  experimental  beginnings. 
The  action  of  the  prerogative  is  on  the  whole  isolated, 
in  individual  cases,  and  it  therefore  presents,  like  the 
liberty,  no  real  exception  to  the  simplicity  of  the 
Anglo-Norman  government. 

Of  this  Anglo-Norman  state  during  its  first  cen- 
tury by  far  the  chiefest,  the  central,  unifying,  all- 
performing  institution  was  the  curia  regis.  It  was 
not  the  only  institution  of  general  government.  A 
large  part  of  the  detailed  work  of  carrying  on  the 
business  of  the  state  was  not  immediately  performed 
by  it.  But  all  was  subject  to  it.  All  officers  were 
responsible  to  it.  By  it  the  old  was  maintained  and 
enforced  and  whatever  innovations  were  made  were 

[56] 


INSTITUTIONAL  INTRODUCTION 

approved  and  confirmed.  By  its  counsel  and  advice 
the  king  acted  in  questions  of  policy,  domestic  and 
foreign,  and  by  its  judgment  disputes  as  to  the  appli- 
cation of  the  law  or  the  ownership  of  property  were 
determined.  No  question  arising  or  fact  occurring 
in  the  field  of  government,  or  of  the  private  interests 
of  the  ruling  class,  was  outside  the  sphere  of  its 
competence. 

The  curia  regis,  or  king's  court,  was  an  assembly 
court.  Like  the  Saxon  witenagemot,  or  the  Caro- 
lingian  king's  court,  which  may  have  been  its  imme- 
diate ancestor,  it  included  in  its  membership  all  the 
chief  men  of  church  and  state.  Unlike  them,  how- 
ever, or  unlike  the  Carolingian  king's  court  until 
feudalism  was  well  established,1  the  position  which 
a  man  held  in  the  public  life  of  his  time  was  not  the 
determining  factor  of  membership  in  the  court.  Its 
institutional  basis,  its  principle  of  composition,  was 
different;  it  was  now  the  vassal  relationship  to  the 
king  which  determined  membership.  The  court  was 
the  assembly  of  the  king's  vassals,  and  its  members 
were  present,  as  Henry  II.  told  the  bishops  in  one 
of  the  clearest  statements  of  the  institutional  prin- 
ciple of  the  court  which  the  literature  of  feudalism 
anywhere  gives  us,  because  they  were  the  king's 
vassals.2  They  were  performing  one  of  the  most 

1  Dahn,  Koenige  der  Germanen,  VIII.  4.  32. 

2  The  Constitutions  of  Clarendon,  c.  XI.  Compare  with  this  the  following: 
Et  establi  a  estre  juges  de  la  Haute  Court  ses  homes  chevaliers  qui  li 

[57] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

important  of  the  services  to  which  the  vassal  bound 
himself  when  he  entered  into  that  relationship. 

When  we  have  said  that  the  normal  principle  of 
the  composition  of  the  curia  regis  was  feudal,  as  it 
undoubtedly  was,  we  have  not  stated  the  whole  case. 
Here  at  the  very  beginning  of  our  study  of  the  con- 
stitution we  are  brought  face  to  face  with  the  excep- 
tion in  the  systematic  organization  of  the  state  which 
is  the  starting  point  of  change,  the  prerogative  of  the 
king.  The  king  was  in  and  of  the  feudal  system  and 
was  its  head.  He  was  the  highest  suzerain,  the  lord 
paramount  of  all  the  vassals  and  of  all  the  land  of  the 
kingdom.  But  he  was  more  than  this.  From  some 
source,  from  what  we  are  only  given  hints,  possibly 
from  traditions  or  reminiscences  of  the  Carolingian 
monarchy,  possibly  by  some  actual  inheritance  from 
it,  with  possible  reinforcement  from  ideas  of  the 
Roman  imperial  authority,  and  with  certain  rein- 
forcement from  conceptions  of  the  Old  Testament 
monarchy,3  there  existed,  if  it  is  too  much  to  say  a 
theory  of  the  king's  function  in  the  state,  certainly  a 
practical  conception  of  it  which  is  definite  enough 
and  which  was  a  vital  seed  of  growth.  It  was  the 

estoient  tenus  de  fei  par  Tonnage  qu'il  li  avoient  fait.  Assises  de  Jerusalem, 
Livre  de  Jean  d'Ibelin,  c.  II.,  ed.  Beugnot,  I.  23.  See  the  citation  in  the 
last  paragraph  of  note  C,  at  the  end  of  the  chapter  (p.  105). 
3  See  Luchaire,  Inst.  Mon.  de  la  France,  I.  41-43;  Flach,  Origines  de 
L'Ancienne  France,  III.  357-359;  Liebermann,  Ueber  die  Leges  Edwardi 
Confessoris,  p.  63;  Poole,  Illustrations  of  Medieval  Thought,  pp.  235- 
236.  Cf.  the  precedents  of  Saul  and  David  cited  in  the  Song  of  Lewes, 
11.  446-448. 

[58] 


INSTITUTIONAL  INTRODUCTION 

business  of  the  king  to  be  a  "Lion  of  Justice,"  to 
make  order  and  security  prevail,  to  protect  the  help- 
less and  the  weak,  the  widow  and  the  orphan,  the 
church,  the  merchant,  the  Jew,  any  one  who  stood  in 
need  at  the  moment,  from  the  constant  danger  of 
oppression  in  those  turbulent  times.  More  than  this, 
it  was  not  so  much  his  duty  to  afford  such  protection 
in  individual  cases  as  they  arose,  as  to  maintain  in 
his  kingdom  such  a  state  of  order  as  to  render  it 
impossible  for  the  powerful  neighbor  to  yield  to 
the  temptation  of  injustice  when  the  opportunity 
offered — such  a  state  of  order  that,  as  contemporaries 
often  expressed  it,  a  woman,  or  a  man  with  his  arms 
full  of  gold,  might  go  in  safety,  though  unprotected, 
from  one  end  of  the  kingdom  to  the  other.  The  king 
as  a  man,  the  kingship  in  its  ordinary  operations, 
might  be  feudal,  intricately  involved  in  feudal  pro- 
cesses and  ideas,  so  that  the  sovereign  might  seem 
lost  in  the  suzerain,  and  the  whole  surface  aspect  of 
the  state  be  feudal,  as  it  surely  was,  but  the  king 
must  still  dominate  feudalism,  he  must  be  master  of 
his  feudal  baronage.  The  king  who  could  do  this  was 
the  good  king,  "the  Lion  of  Justice";  the  king  who 
could  not  do  it,  either  from  some  defect  of  personal 
qualities,  or  from  the  special  conditions  of  his  time, 
however  lovable  he  might  be  personally,  or  how 
truly  a  man  of  energy,  and  Stephen  seems  to  have 
been  both,  was  a  bad  king  "who  did  no  justice." 
Now  in  practical  operation  this  side  of  the  king- 

[59] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

ship  shows  itself  in  a  number  of  acts,  powers  of  action 
we  might  say  in  the  abstract,  prerogatives,  which  do 
not  come  from  feudalism,  and  for  the  exercise  of 
which  the  feudal  system  does  not  provide.  A  dis- 
cussion of  their  relation  to  feudalism,  whether  they 
are  anti-feudal  or  not,  does  not  belong  here.  Here 
it  suffices  to  note  that  they  are  non-feudal.  From 
what  source  they  actually  came  to  the  Anglo-Norman 
kings  it  is  not  possible  to  say  with  certainty,  but  their 
similarity  in  specific  operation  all  along  the  line  to 
corresponding  actions  of  the  Carolingian  kings  is  so 
striking  that  the  temptation  to  derive  them  from  that 
source,  even  in  the  absence  of  connecting  evidence, 
is  almost  irresistible. 

More  important  for  our  present  purpose  than  an 
identification  of  the  sources  of  the  Anglo-Norman 
king's  prerogative  is  it  to  insist  upon  the  utmost 
necessity,  if  one  would  understand  the  Anglo- 
Norman  state  even  during  its  first  century,  and  still 
more  during  the  century  of  change  which  follows,  of 
giving  due  weight  to  these  two  contemporary  and 
coactive  sides  of  the  kingship — the  feudal  and  the 
prerogative.  The  government  was  carried  on  mainly 
by  feudalism.  Government  processes,  government 
machinery,  prevailing  ideas  and  interpretations,  the 
air  and  aspect  of  all,  was  feudal.  But  to  carry  out 
practically  his  supreme  function  of  maintaining  jus- 
tice in  the  state,  the  king  was  recognized  as  possessing 
certain  rights  and  powers  not  contained  in  any  con- 

[60] 


INSTITUTIONAL  INTRODUCTION 

ception  of  the  suzerain,  and  at  any  moment  he  might 
interpose  to  do  something  which  the  feudal  law  did 
not  provide  for,  for  the  source  and  justification  of 
which  he  virtually  called,  he  would  have  called  had 
he  reasoned  about  his  action,  upon  a  different  con- 
ception of  the  state  from  the  feudal.  It  is  the  opera- 
tion together  of  these  two,  feudalism  and  prerogative, 
which  characterizes  the  constitution  of  the  first  cen- 
tury of  the  Anglo-Norman  state;  it  is  their  rivalry, 
their  struggle  ,for  a  supremacy  which  neither  in  the 
end  gains,  which  is  the  key  to  the  constitutional  his- 
tory of  the  second  century,  and  in  one  sense  this  it  is 
which  gives  rise  to  the  English  limited  monarchy. 

In  the  membership  of  the  king's  court,  as  has  been 
said,  the  action  of  these  prerogative  powers  is  occa- 
sionally to  be  seen — is  perhaps  always  seen  in  one 
essential  element  of  the  court's  composition — the  offi- 
cial element.  It  was  of  course  a  principle  of  the  feudal 
law  that  the  vassal  performed  any  given  service  due 
from  him  only  on  special  summons  for  each  occasion. 
Ordinarily  no  one  attended  a  session  of  the  court  who 
had  not  been  asked  to  do  so.  But  the  feudal  law  pro- 
vided in  no  way  for  the  attendance  of  the  non-vassal. 
Yet  it  seems  clear  that  the  king  had  the  right  to  make 
persons  whom  we  cannot  show  to  have  been  his 
vassals  full  members  in  the  court  with  the  same  voice 
in  making  up  its  final  decision  as  any  of  its  members. 
Cases  of  the  kind  are  not  uncommon — the  queen,  the 
king's  sons,  visiting  potentates  lay  and  ecclesiastical, 

[61] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

the  papal  legate,  even  the  king  of  another  state.4  One 
class  is  here  of  particular  importance — the  permanent 
officials  of  the  king's  court  and  household.  They 
formed  in  all  probability  a  most  influential  element 
in  every  session,  with  special  knowledge  of  business 
and  precedents  and  with  a  special  responsibility  for 
the  king's  interests,  a  more  permanent  element  than 
the  ordinary  baronage  might  be,  an  element  con- 
tinuing with  regularity  from  session  to  session  and 
proportionately  of  still  greater  importance  in  those 
slightly  attended  sessions  of  the  court  which  fell  in 
times  between  the  great  assemblies  and  must  have 
been  the  chief  dependence  of  the  time  for  the  every- 
day details  of  governmental  business,  and  yet  not- 
withstanding their  evident  importance  in  the  curia 

*  Stubbs,  I.  386 ;  Petit-Dutaillis,  Louis  VIII.,  pp.  344-345.  A  rather  typi- 
cal case  was  the  Easter  "generale  concilium,"  held  by  Stephen  in  1136. 
It  contained  the  two  archbishops,  eleven  bishops  of  England  and  Wales, 
the  archbishop  of  Rouen  and  four  Norman  bishops,  the  king's  nephew, 
Henry,  afterwards  Count  of  Champagne,  and  the  son  of  the  king  of  Scot- 
land, the  chancellor,  two  constables,  two  chamberlains,  a  dapifer,  a 
butler,  three  earls  and  six  barons  Madox,  I  13,  s.  See  Round,  Geoff. 
de  Mand.,  p.  16,  and  cf.  the  commune  consilium  of  1218,  Rymer,  I.  152. 
Such  enumerations  may  not  be  complete,  but  they  include  certainly  all 
important  names.  To  the  council  of  1164,  trying  Thomas  Becket,  the 
king  called  certain  sheriffs  et  secundsa  dignitatis  barones,  antiqui  dierum, 
ut  addantur  eis  et  assint  judicio.  Robertson,  Materials,  Rolls  Series, 
III.  67.  The  same  writer,  William  Fitz  Stephen,  who  knew  the  law 
rather  well,  seems  to  think  the  chancellor  had  a  right  to  attend  even  if 
he  was  not  summoned.  Ibid.,  p.  18.  The  anonymous  author,  referring 
to  the  same  curia,  makes  also  a  very  good  statement  of  the  different 
elements  united  in  a  great  council.  Ibid.,  IV.  41.  The  queen  or  the 
king's  sons  are  frequently  named  as  present  at  a  curia  and  often  witness 
its  action.  See  Round,  Cat.,  Nos  78  and  1190.  On  the  presence  of  the 
legate  see  Bracton's  N.  B.,  pi.  1273. 

[62] 


INSTITUTIONAL  INTRODUCTION 

no  emphasis  is  placed  upon  the  fact  of  their  vassal- 
age. No  attention  was  paid  apparently  to  the  ques- 
tion whether  they  were  vassals  or  not;  but  the  essen- 
tial point  was  their  official  character.  As  a  matter 
of  fact  they  were  no  doubt  in  all  cases  during  the  first 
century  connected  with  the  king  by  feudal  homage 
and  fealty,5  and  yet  also  without  doubt  the  king  had 
the  power  to  give  them  full  standing  in  the  court 
whether  they  were  or  not.  Later  when  differentia- 
tion had  begun  in  the  curia  regis  and  questions  of  the 
extent  of  the  competence  and  jurisdiction  of  some 
of  its  branches  arose  because  they  were  rapidly  taking 
on  a  less  feudal  and  more  official  character,  it  seems 
clearly  to  have  been  assumed  that  the  official  justice 
was  the  peer  of  the  feudal  baron,  until  the  king  was 
forced  by  the  barons  to  admit  exceptions  in  some 
cases.  Such  an  assumption  in  regard  to  a  justice  who 
was  an  official  only,  and  not  a  vassal  was  certainly 
contrary  to  feudal  law,  but  with  equal  certainty  not 
beyond  the  competence  of  the  king's  prerogative. 
This  question,  however,  did  not  arise  in  the  first  cen- 
tury and  during  that  time  the  curia  regis  was  com- 
posed of  the  baronial  element,  as  summoned  to 
attend,  and  without  objections  of  any  others  whose 
presence  the  king  desired.6 

5  If  by  no  other,  then  by  a  serjeanty  tenure  by  which  they  might  hold  the 
lands  which  served  as  the  endowment  of  their  office,  but  this  as  a  feudal, 
though  not  strictly  a  military  tenure,  would  be  sufficient  to  meet  any 
objection  that  might  be  made  on  grounds  of  strict  law.    See  chapter  V., 
note  30. 

6  Probably  when  the  question  did  arise,  the  real  obj  ection  of  the  feudal 

[63] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

The  curia  regis  was  not  merely  an  assembly  court 
in  composition ;  it  was  an  assembly  in  the  way  in  which 
it  did  its  business.  Its  presiding  officer,  often  in  prac- 
tice and  always  in  theory  the  king  himself,  was  a  mod- 
erator only,  not  a  judge.  The  decision  was  formed, 
the  judgment  was  made,  by  the  prevailing  opinion  of 
the  membership  at  large,  and  in  this  the  king  in  form 
had  no  share  though  it  is  difficult  to  suppose  that  his 
known  wish  should  not  have  had  great  influence,  par- 
ticularly in  the  non- judicial  action  of  the  court.  In 
form,  however,  he  had  no  voice.  A  lawsuit  in  which 
he  had  a  direct  interest  could  be  fairly  tried  by  the 
court  over  which  he  presided.  The  decision  of  the 
court  was  usually  formally  stated  by  some  one  of  its 
members,  but  it  did  not  become  legally  valid  and 
compulsory  until  it  had  been  officially  proclaimed  as 
its  decision  by  the  moderator.  It  is  clear  that  such 
an  official  sanction  might  be  withheld  by  the  king  if 
for  any  reason  he  thought  best  to  do  so.7  He  was  not 

class  was  not  so  much  to  the  fact  that  the  individual  justice  was  not 
technically  a  vassal,  as  to  the  fact  that  he  was  so  thoroughly  an  official 
as  to  be  professional,  with  this  added  that  in  many  cases  he  had  risen 
from  a  non-baronial  class.  What  they  wished  to  retain  in  cases  where 
they  wished  to  retain  anything  was  the  right  of  the  baronial  class  as  a 
class  to  settle  questions  affecting  its  own  members.  They  were  clearly 
right,  however,  in  feudal  law. 

7  The  distinction  between  the  action  of  the  suitors  of  the  court  in  making 
the  j  udgment  and  that  of  the  presiding  officer  which  gives  it  legal  validity 
by  proclaiming  it  as  the  judgment  of  the  court,  the  distinction  between 
Urteilfindung  and  Rechtsgebot,  is  established  by  abundant  evidence  and 
noted  by  secondary  authorities  generally,  but  it  seems  never  to  have 
been  fully  apprehended  and  logically  applied  by  students  of  English 
institutions.  See  Brunner,  Deutsche  Rechtsgeschichte,  I.  203  (1906), 

[64] 


INSTITUTIONAL  INTRODUCTION 

bound  by  the  action  of  the  court  and  might  act 
against  its  advice,  though  he  would  do  so  in  extraor- 
dinary cases  only,  and  probably  never  when  its  action 
was  judicial. 

The  king's  court,  as  an  assembly  of  all  the  vassals 
of  the  kingdom,  met  regularly,  as  had  both  the  court 
of  the  Norman  duke  and  the  Saxon  witenagemot,  on 
the  three  great  church  festivals  of  the  year,  Christmas, 
Easter,  and  Pentecost.  These  were  the  great  assem- 
blies, called  magna  concilia,  and  they  were  all  the 
meetings  that  were  regularly  provided  for  in  the  con- 
stitution of  the  first  two  Norman  reigns  so  far  as  we 
know.  It  is  evident,  however,  that  the  distribution 
of  these  meetings  throughout  the  year  was  very  un- 

II.  225-226  (1892);  P.  and  M.,  I.  87,  535  ff.  Maitland  describes  clearly 
and  fully  the  function  of  the  doomsmen,  but  nowhere,  so  far  as  I  know, 
with  equal  fullness  and  clearness  the  Rechtsgebot.  The  distinction  is 
illustrated  as  numerously  and  as  perfectly  in  the  English  sources  as  in 
those  of  any  country.  Especially  good  examples  come  to  us  from  the 
reign  of  William  I.  From  about  1071:  Hujus  placiti  multis  testibus 
multisque  rationibus  determinatum  finem  postquam  rex  audivit,  laudavit, 
laudans  cum  consensu  omnium  principum  suorum  confirmavit,  et  ut 
deinceps  incorruptus  perseveraret,  firmiter  praecepit.  Bigelow,  Placita, 
p.  9,  from  Anglia  Sacra,  I.  336.  From  1076:  The  most  victorious  King 
William  approved  and  confirmed  this  decision,  commanding  that  it  should 
be  set  forth  in  writing,  and  gave  it  validity  forever  by  these  words  .... 
Round,  Cal.,  No.  712.  From  1080:  "It  was  decreed  and  decided  by  all  the 
above-named  judges,  and  confirmed  by  the  king's  command  and  author- 
ity." Ibid.,  No.  78.  See  also  Memorials  of  St,  Edmund's  Abbey,  I.  348, 
a  case  in  1081.  The  Abingdon  Chronicle,  II.  187,  states  what  was  thought 
to  be  a  reason  for  the  practice  in  a  case  arising  early  in  the  reign  of 
Henry  II.:  Dicebant  quippe  solidius  posse  subsistere  quod  ex  ore  regio 
prolata  auctoritas  studuerit  confirmare.  Bracton  at  the  beginning  of 
his  Treatise,  f.  1,  draws  the  distinction  exactly  in  legislation:  Sed 
absurdum  non  erit  leges  Anglicanas  (licet  non  scriptas)  leges  appellare, 
cum  legis  vigorem  habeat,  quicquid  de  consilio  et  de  consensu  magnatum 

[65] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

even.  It  is  also  evident  that  a  central  institution  so 
intimately  associated  with  all  the  operations  of  the 
government  could  not  serve  its  purpose  in  the  state 
with  three  meetings  only  and  these  in  the  first  half 
of  each  year.8  We  know  that  meetings  were  held  at 
other  times,  on  special  summons  by  the  king,  or  on 
occasions  when  some  other  reason,  like  a  campaign 
or  a  coronation,  brought  the  great  body  of  the  vassals 
together.  But  even  with  these  additional  sessions  the 
government  would  be  inadequately  served.  In  the 
reign  of  Henry  I.  there  comes  into  sight  a  small  curia, 
bridging  the  intervals  of  the  larger  and  acting  with 
all  its  powers,  trying  cases,  supervising  the  sheriffs' 
accounts  and  receiving  and  caring  for  the  king's 
revenues.  Of  such  an  institution  we  get  glimpses  in 

et  reipublicae  communi  sponsione,  auctoritate  regis  sive  principis 
praecedente,  juste  fuerit  definitum  et  approbatum.  Probably  procedure 
in  judicial  action  was  much  more  formal  and  prescribed  than  in  legis- 
lative, but  in  general  the  same  principles  hold  in  both  cases.  Brunner 
notices,  1.  c.  II.  226,  the  occurrence  of  lax  forms  of  expression  which 
confuse  the  different  functions,  and  such  expressions  were  probably 
more  frequent  in  accounts  of  legislative  than  of  judicial  action.  Even 
in  formal  documents  the  action  appears  as  that  of  the  king  "by  the 
counsel  and  assent"  of  his  barons  because  its  actual  legal  validity  comes 
from  its  formal  acceptance  and  promulgation  by  him. 
8  At  whatever  time  the  Exchequer  became  definitely  established  with  a 
fixed  accounting  at  Michaelmas,  for  the  final  statement  of  the  year's 
business,  something  like  a  fourth  meeting  of  the  great  curia  may  be 
counted.  The  Exchequer  was  a  small  and  not  a  great  curia,  yet  by 
bringing  all  the  sheriffs  of  England  together,  and  many  interested  per- 
sons besides  (see  Madox,  II.  244-247),  it  nevertheless  served  some  of 
the  purposes  of  the  great  curia  more  truly  than  an  ordinary  meeting 
of  the  small  curia.  Probably  the  Michaelmas  Exchequer  accounts  for 
the  frequency  of  meetings  of  the  great  council  on  October  13,  in  the 
reign  of  Henry  III. 

[66] 


INSTITUTIONAL  INTRODUCTION 

the  earlier  reigns,  and  we  shall  be  doing  no  great 
violence  if  we  assume  its  existence  from  the  begin- 
ning, with  less  definiteness  perhaps  and  fixity  of  posi- 
tion than  it  had  later,  but  with  no  less  powers,  prac- 
tically in  permanent  session  and  looking  after  the 
daily  details  and  daily  questions  of  the  ordinary  run- 
ning of  the  government.  Its  membership  would  be 
from  the  first  what  it  was  when  we  get  clearer  evi- 
dence of  its  existence — household  and  court  officials 
as  its  permanent  core,  and  such  persons  from  the  body 
of  the  baronage  as  might  be  in  attendance  on  the  king, 
or  present  with  him  for  any  reason.  The  relation  of 
the  smaller  to  the  larger  curia,  a  relationship  not  easy 
for  the  modern  mind  to  comprehend  but  one  that 
must  be  seen  if  the  operation  of  feudal  government  is 
to  be  understood,  cannot  be  here  considered  in  detail.9 
There  should  be  noticed  what  cannot  be  too  often 
repeated  that  the  smaller  was  not  a  committee  of  the 
larger,  vested  by  it  with  certain  duties;  it  was  the 
larger  with  all  its  rights  and  powers.  Whatever  the 
larger  could  do,  the  smaller  could  do  also.  It  differed 
from  the  larger  merely  in  the  number  of  those  attend- 
ing. There  is  one  curia  regis  of  the  Anglo-Norman 
state  expanding  and  contracting,  and  expanding  and 

9  See  Political  History  of  England,  II.  18-20,  182-185;  Stubbs,  I.  406- 
407;  Maitland,  Constitutional  History,  pp.  60-64.  The  advance  made  by 
Maitland  over  Stubbs,  due  to  his  clearer  perception  of  the  feudal  char- 
acter of  the  Anglo-Norman  government,  is  evident  here,  as  well  as  the 
fact  that  he  sometimes  hesitates  to  make  a  completely  logical  applica- 
tion of  feudal  principles.  See  note  A  at  the  end  of  chapter  IV.  (p.  186). 
See  also  appendix  I. 

[67] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

contracting  again,  as  the  year  goes  on,  but  always  in 
whatever  phase  performing  the  same  undifferentiated 
functions.  If  then  we  add  together,  as  two  phases 
of  the  same  institution,  the  practically  constant  work 
of  the  smaller  curia  and  the  occasional  sessions  of  the 
larger,  bringing  together  in  theory  at  least  the  whole 
ruling  class  of  the  country  in  one  assembly,  we  have 
the  unifying,  energizing,  supervising,  and  controlling 
institution  of  the  Norman  state. 

This  centralizing  character  of  the  curia  regis  is 
apparent  not  merely  in  the  assembly,  but  in  the  bring- 
ing together  into  a  single  institution  of  almost  all  the 
business  of  the  state,  and  is  from  our  point  of  view  its 
most  essential  feature.10  Legislation  was  not  frequent 
in  the  feudal  state  but  occasionally  changes  were  made 
in  law,  or  actual  innovations,  and  these  were  made  by 
the  curia  regis,  as  in  the  ordinance  of  William  I.  sepa- 
rating the  ecclesiastical  and  temporal  courts,  or  in  the 
Assize  of  Clarendon  of  Henry  II.11  The  act  of  coun- 
sel in  important  affairs  is  more  frequent  and  is  also 
the  function  of  the  curia  as  in  the  advice  to  William 
the  Conqueror  at  Berchamstead  to  accept  the  offer  of 
the  crown;  the  refusal  of  the  request  of  William  II. 
that  Anselm  should  no  longer  be  recognized  as  arch- 
bishop of  Canterbury;  the  approval  of  the  second 
marriage  of  Henry  I.  The  fact  that  they  were  not 

10  A  good  example  of  the  miscellaneous  business  coming  before  a  meeting 
of  the  great  council  may  be  found  in  the  account  of  the  meeting  at 
Northampton,  January,  1177,  in  the  Geata,  I.  132-136. 

11  See  note  B  at  the  end  of  chapter  IV. 

[68] 


INSTITUTIONAL  INTRODUCTION 

consulted  in  the  case  of  the  marriage  of  the  Empress 
Matilda  to  Geoffrey  of  Anjou  was  made  a  subject 
of  complaint  by  the  barons.  The  curia  was  also  the 
one  judicial  institution  for  all  cases  affecting  the 
crown,  as  in  trials  of  treason  like  those  of  Roger  and 
Waltheof ,  and  of  William  of  St.  Callais ;  in  trials  for 
great  failure  of  service  and  of  duty  as  in  the  case  of 
Robert  of  Belleme  or  Henry  of  Essex;  or  of  other 
cases  affecting  fealty,  faithful  loyalty  to  the  crown, 
as  those  of  Odo,  the  king's  brother,  and  Thomas 
Becket.  But  the  curia  regis  was  the  one  judicial  insti- 
tution also  for  the  trial  of  cases  between  the  vassals 
of  the  king,  if  the  questions  were  important  enough, 
or  the  rank  of  the  parties  high  enough,  to  warrant  its 
attention,  and,  though  the  Anglo-Norman  king  could 
not  be  directly  sued,  for  petitions  to  the  king  for  jus- 
tice against  himself  in  cases  where  a  private  man 
would  be  subject  to  suit.  The  administrative  system 
was  as  completely  in  its  hands  as  the  legislative,  con- 
ciliar,  and  judicial,  first  through  its  direct  super- 
vision of  the  details  of  feudalism,  for  besides  the  great 
assemblies  which  several  times  a  year  brought  together 
certainly  all  the  great  vassals  into  immediate  contact 
with  the  king  to  be  held  by  that  mere  fact  to  their 
dependence  and  obligations,  it  was  here  in  normal 
cases  that  the  right  of  the  heir  to  his  father's  fief  was 
recognized — homage  and  fealty  performed,  and  inves- 
titure granted — and  here  complaints  of  inadequate 
performance  of  feudal  obligations  were  made  and 

[69] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

settled,  as  in  the  question  raised  by  William  II. 
against  Anselm  on  his  return  from  the  Welsh  cam- 
paign. Through  the  performance  of  his  duties  in  the 
curia  regis,  even  more  than  by  the  fulfilling  of  his 
other  feudal  obligations,  the  baron  became  an  inti- 
mate and  very  essential  part  of  the  operating  machin- 
ery of  the  state,  indispensable  indeed  to  the  perform- 
ance of  its  functions.  But  the  official  administrative 
machinery  proper  was  under  the  control  of  the  curia 
also  in  all  its  lines  through  its  supervision  of  all  the 
officers  who  had  to  do  with  the  general  government, 
both  those  of  the  household  and  those  of  the  counties. 
In  a  word,  as  has  already  been  said,  there  was  no 
function  of  the  state,  no  line  of  public  activity,  no 
interest  of  the  government  or  of  the  ruling  class  which 
was  beyond  the  control  of  the  curia  regis  or  which 
could  be  withdrawn  from  its  scrutiny.  It  was  the 
one  centralizing,  unifying  institution  of  the  Xorman 
state,  supervising  all  government  and  bringing  the 
feudal  baron  constantly  into  contact  with  law  and 
authority.  It  is  for  this  reason  that  the  curia  becomes, 
as  the  constitution  unfolds,  the  mother  of  so  many 
institutions  and  also  why,  on  account  of  the  unusually 
regular  and  logical  growth  of  institutions  in  England, 
the  principles  of  the  curia  explain  so  many  of  the 
seeming  peculiarities  and  anomalies  of  the  later  Eng- 
lish Constitution.12 

The  carrying  on  of  the  details  of  government  from 

12  See  appendix  I. 

[70] 


INSTITUTIONAL  INTRODUCTION 

day  to  day  was,  so  far  as  concerns  the  general  as  dis- 
tinguished from  the  local  government,  in  the  hands 
of  the  court  and  household.  The  chief  of  these  in 
England  were  the  chancellor  with  his  staff  of  clerks, 
acting  as  the  king's  secretary,  preparing  and  authen- 
ticating documents  of  all  kinds,  and  attending  to 
many  details  both  of  an  administrative  and  judicial 
character,  the  most  widely  employed  of  the  house- 
hold officers;  the  marshal  and  constable,  having  spe- 
cial responsibility  for  military  matters;  the  chamber- 
lain, supervising  the  organization  of  the  household 
and  social  court  and  its  contact  with  those  not  directly 
belonging  to  it ;  the  dapif er  or  steward,  who,  together 
with  the  butler,  had  oversight  of  the  economic  side  of 
court  and  household  and  never  became  in  England 
so  important  a  political  officer  as  in  France  ;13  and  the 
treasurer,  who  received  and  accounted  for  the  king's 
revenue.  These  were  the  principal  officers  in  Eng- 
land and  their  ordinary  functions.  But  they  were 
often  employed  in  other  services  for  which  the  king 
might  have  need.  It  may  be  thought  that  there 
should  be  added  to  these  for  completeness  of  state- 
ment the  king's  justice,  an  office  not  regularly  but 
occasionally  filled  during  the  first  century,  but  one 
of  increasing  importance  and  always  of  great  effi- 
ciency as  an  instrument  of  centralization.  The  jus- 

13  See  L.  W.  Vernon  Harcourt,  His  Grace  the  Steward  and  Trial  of 
Peers,  chapter  L(1907),  and  cf.  A.  H.  R.,  XIV.  475.  On  the  subject  of 
the  household  in  general  see  Round,  The  King's  Serjeants  and  Officers 
of  State,  chapter  IV.  (1911). 

[71] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

tice  belongs,  however,  upon  the  side  of  the  king's  pre- 
rogative and  not  of  the  normal  governmental  machin- 
ery, and  must  be  there  more  fully  considered. 

To  complete  the  account  of  the  normal  machinery 
of  the  central  government,  there  must  be  added  the 
local  organ  of  centralization,  the  sheriff.  Whether 
the  Anglo-Norman  sheriff  of  the  first  century  owes 
more  of  the  meaning  and  efficiency  of  his  office  to 
Saxon  or  to  Norman  ideas  may  here  be  left  unsettled. 
From  whatever  source  derived,  or  from  both,  the  office 
was  a  most  efficient  means  of  centralization,  carrying 
the  king's  authority  into  every  locality  and  the  watch- 
ful supervision  of  the  curia  regis,  so  long  at  least  as 
the  not  easy  problem  of  holding  the  sheriff  himself 
under  effective  control  was  solved.  It  is  to  be  said 
that  almost  always  in  the  Anglo-Norman  state  it  was 
solved  and  the  sheriff  of  the  first  century  comes  nearer 
than  the  Carolingian  count  himself  did  through  long 
periods  of  Frankish  history  to  realizing  in  practice 
the  idea  of  that  officer  as  the  local  organ  of  the  central 
government.  Indeed  the  Norman  sheriff  gives  little 
trouble  by  his  independence  of  control,  though  he  was 
usually  a  great  baron  of  the  locality.  There  are  some 
cases  of  hereditary  sheriffs  in  England,  as  there  had 
been  a  number  of  hereditarv  viscounts  in  Normandv, 

•/  »    ' 

but  this  danger  to  the  central  power  never  developed 
to  any  extent  north  of  the  Channel,  and  was  appar- 
ently soon  checked  in  the  duchy.  It  would  seem  to 
be  quite  possible  that  in  the  case  of  the  viscount  we 

[72] 


INSTITUTIONAL  INTRODUCTION 

have  one  of  the  places  where  the  Conquest  reacted 
to  increase  the  power  of  the  duke  in  Normandy  and 
to  bring  about  a  more  effective  local  administration. 
Nor  did  the  practice  of  which  there  are  occasional 
instances  of  joining  the  shrievalties  of  a  number  of 
counties  in  a  single  hand  prove  dangerous ;  it  is  rather 
evidence  of  the  king's  confidence  in  his  control. 
There  are  a  number  of  cases  where  inquiry  is  made 
into  the  conduct  of  the  sheriffs,  and  they  are  removed 
from  office  in  consequence,  notably  in  the  great  in- 
quest of  1170,  at  which  time  two  thirds  of  all  the 
sheriffs  were  removed,  but  so  far  as  the  evidence 
allows  us  to  judge,  in  all  cases  probably,  and  certainly 
in  1170,  these  are  not  instances  of  the  vindication  of 
the  royal  authority  against  the  effort  of  the  sheriff 
to  make  himself  independent.  They  are  proofs  rather 
of  the  reality  and  completeness  of  that  authority,  for 
the  sheriff  was  removed  for  going  beyond  his  rights 
and  abusing  his  powers  not  to  the  detriment  of  the 
king  but  of  the  people  of  the  county.14 

In  function  the  shrievalty  is  as  undiff erentiated  an 
institution  as  the  curia  regis.  It  may  be  said  in  a 
word  that  it  was  the  duty  of  the  sheriff  to  see  to  the 
doing  of  everything  which  the  central  government 
wished  done  in  his  bailiwick.  He  was  the  ordinary 
local  justice,  presiding  regularly  at  the  trial  of  certain 
cases  in  which  the  central  government  had  an  interest, 

14  See  Inquest  of  Sheriffs,  L,  Stubbs,  8.  C.,  p.  148;  Florence  of  Worcester, 
II.  138. 

[73] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

and  receiving  special  orders  to  attend  to  others.  The 
first  century  after  the  Conquest  is  the  climax  of  the 
sheriff's  function  as  the  local  representative  of  the 
general  judicial  system.  He  was  also  the  local  admin- 
istrative and  executive  officer,  responsible  for  the 
enforcement  of  existing  law  and  the  maintenance  of 
order,  arresting  offenders  and  holding  them  for  trial, 
and  in  this  capacity  also  receiving  special  orders  from 
the  central  government.  He  was  the  local  financial 
officer,  collecting  both  ordinary  and  extraordinary 
revenues,  fines,  and  dues,  and  responsible  to  the  curia 
regis  for  the  payment  of  a  fixed  sum  each  year  from 
his  county,  called  its  fern.  He  was  more  than  an 
ordinary  financial  officer,  because  his  duties  included 
a  responsibility  for  the  profitable  conducting  of  the 
royal  domain  manors  lying  within  his  jurisdiction, 
and  in  the  first  century  for  due  information  of  occa- 
sional opportunities  for  revenue,  like  marriages, 
wardships,  and  escheats.  He  was  also  the  local  mili- 
tary representative  of  the  government  through  whom 
general  summons  to  military  service  would  be  sent 
to  all  tenants  in  chief  not  receiving  an  individual 
summons,  and  especially  responsible  whenever  the 
general  levy — the  fyrd — was  called  into  service.  In 
addition  to  these  functions  in  the  ordinary  carrying 
on  of  government,  the  sheriff  was  during  the  first 
century  one  of  the  chief,  though  not  the  only,  organ 
in  the  localities  of  the  king's  prerogative  action. 
It  is  very  easy  to  see,  even  from  this  outline 

[74] 


INSTITUTIONAL  INTRODUCTION 

account,  that  the  shrievalty  was  a  primitive,  almost  a 
crude,  organ  through  which  to  carry  out  locally  the 
general  government  of  a  wide  territory,  and  yet  it 
should  be  evident  that,  if  sufficiently  checked  and 
controlled  by  the  central  government  in  the  exercise 
of  its  vague  and  elastic  functions,  it  was  really  a  most 
effective  organ  in  a  simple  and  undifferentiated  state. 
This  is  what  the  Norman  state  was,  simple  and  undif- 
ferentiated. The  two  great  and  characteristic  insti- 
tutions which  almost  alone  formed  its  constitution 
were  the  curia  regis  and  the  shrievalty,  through  each 
of  which  all  functions  of  government  were  at  once 
exercised,  one  for  the  land  as  a  whole,  the  other  for 
local  districts  into  which  the  land  was  divided  for 
more  effective  supervision.  But  it  was  a  real  govern- 
ment in  which  the  central  kept  careful  hand  on  the 
local.  Its  very  simplicity  in  a  primitive  time  tended 
strongly  to  centralization. 

The  object  of  this  introductory  account  of  the  gen- 
eral machinery  of  the  ordinary  or  normal  Anglo- 
Norman  government  has  not  been  to  state  the  facts 
primarily  for  information.  They  are  already  suffi- 
ciently well  known.  It  has  been  rather  for  the  pur- 
pose of  distinguishing  clearly  this  side  of  the  govern- 
ment from  the  occasional  institutional  action  of  the 
king,  his  prerogative  action  as  it  has  been  called, 
which  is  now  to  be  described,  in  order  if  possible  to 
exhibit  over  against  one  another  those  two  separate 
and  distinct  sides  of  the  governmental  activity  of  the 

[75] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

time,  with  special  reference  to  the  future  develop- 
ment. A  second  object  has  been  to  make  clear 
both  the  simple,  undifferentiated  character  of  the 
government  and  at  the  same  time  its  high  degree 
of  centralization.  All  these  things  are  of  great  impor- 
tance in  their  bearing  on  the  changes  of  the  second 
century,  and  if  they  are  not  clearly  perceived  at  the 
outset  those  changes  will  not  be  fully  understood  in 
all  their  origins  and  relationships. 

To  complete  our  sketch  of  the  general  constitu- 
tion of  the  first  century  we  have  now  to  consider  those 
instances  of  institutional  action  which  occur  occa- 
sionally and  are  not  produced  by  the  constantly  act- 
ing everyday  machinery  of  the  state  but  are  the 
result  of  interposition  on  the  part  of  the  king  for 
special  purposes  or  on  special  occasions;  interfer- 
ences to  procure  results  which  might  indeed  in  some 
cases  have  been  produced  by  the  regular  machinery, 
but  more  slowly,  or  more  uncertainly,  and  in  many 
cases  not  at  all.  This  prerogative  action  of  the  king's 
may  be  seen  most  clearly  by  an  examination  of  three 
typical  cases ;  these  are  also  the  cases  having  the  most 
important  bearing  on  the  later  development  of  the 
constitution.  They  are:  first,  the  writ;  second,  the 
special  commissioner  or  justice;  and  third,  the  jury. 

By  specifying  the  writ  as  one  of  the  classes  of  pre- 
rogative action  I  do  not  intend  to  assert  that  it  was 
not  also  a  part  of  the  regular  machinery  of  the  state. 
It  was  so  constantly  employed  and  so  essentially 

[76] 


INSTITUTIONAL  INTRODUCTION 

necessary  in  such  a  simple  and  undeveloped  govern- 
ment that  it  is  impossible  almost  to  conceive  of  that 
constitution  in  operation  without  imagining  the  con- 
stant employment  of  the  writ.  It  was  used  by  the 
Anglo-Saxon  kings,  and  we  may  say  by  every  early 
government  in  some  more  or  less  related  form  as  a 
constant  dependence.  The  writ  we  may  define  in 
simple  terms,  for  our  present  purpose,  as  an  order 
issued  by  the  king,  directed  to  some  officer,  or  to  some 
individual,  or  to  a  group  of  these,  commanding  that 
some  specific  thing  be  done  and  often  that  a  report 
of  the  performance  be  returned  to  him.  Those  writs 
which  are  essential  to,  or  incidental  to,  the  ordinary- 
operations  of  the  governmental  machine,  like  a  sum- 
mons to  attend  the  curia  regis,  fall  out  of  considera- 
tion here.  The  same  process  was,  however,  very  fre- 
quently employed,  when  the  king  wished  to  secure 
some  result  not  probable,  or  not  possible  to  the  ordi- 
nary machinery,  and  the  writ  may  be  regarded,  in 
form  at  least,  and  perhaps  in  more  than  form,  as  a 
bridge,  or  connecting  link,  between  the  regular  action 
and  the  prerogative  action  of  the  Anglo-Xorman 
government. 

Two  writs  which  had  taken  definite  form  at  the 
close  of  the  first  century  (1166),  or  certainly  very 
soon  after  the  close  of  that  century,  and  whose  roots 
ran  back  to  an  early  point  in  it,  may  be  taken  as  the 
most  easily  understood  and  clearly  typical  instances 
of  these  prerogative  writs.  The  one  is  the  writ  of 

[77] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

right,  the  other  the  writ  called  the  Prsecipe  quod 
reddat. 

The  writ  of  right  is  not  merely  typical  of  this 
employment  of  the  writ,  but  also  strictly  typical  of 
the  whole  prerogative  action  of  the  king.  These  are 
the  circumstances  in  which  it  was  issued  and  this  is 
what  it  was:  In  the  modern  state  cases  of  local  judi- 
cial need  fall  to  the  care  of  local  courts  which  are 
an  integral  part  of  the  general  judicial  organization 
of  the  state  as  a  whole.  We  find  it  difficult  to  con- 
ceive of  any  other  arrangement,  but  it  was  not  so  in 
the  feudal  state.  There  a  large  proportion  of  such 
cases  were  under  the  control  of  a  court  which  was  a 
personal  and  very  profitable  private  possession  of 
the  feudal  lord  and  formed  no  part  of  any  organically 
connected  general  judicial  machinery  of  the  state  as 
a  whole.  Every  feudal  lord,  who  had  a  sufficient 
extent  of  property,  was  likely  to  be  in  possession  of 
three  distinct  kinds  of  jurisdiction,  and  he  might  have 
a  distinct  court  corresponding  to  each,  what  we  may 
call  the  feudal  proper,  the  manorial,  and  the  juris- 
diction of  a  local  public  court  transferred  to  him,  or 
usurped  by  him,  say  a  hundred  court — or  perhaps  in 
this  last  class  he  had  merely  the  right  to  try  in  some 
other  court  of  his  a  certain  range  of  cases  which  ought 
normally  to  go  into  such  a  public  court.  At  this  point 
we  are  concerned  with  the  first  of  these  only.  The 
lord's  feudal  court  was,  like  the  king's,  an  assembly 
court  composed  of  his  vassals  and  having  jurisdiction 

[78] 


INSTITUTIONAL  INTRODUCTION 

of  the  disputes  arising  among  them,  or  between  any 
of  them  and  him,  as  to  the  ownership  of  feudal 
property  or  the  definition  and  enforcement  of  feudal 
rights  and  duties.15  Let  us  take  as  an  example  a  case 
of  the  kind  which  frequently  gave  rise  to  royal  inter- 
ference by  writ  of  right:  The  knight  A  claims  the 
right  to  hold  a  certain  manor  as  a  vassal  of  the  earl 
of  Oxford.  The  earl  disputes  his  claim  and  is  in  pos- 
session of  the  manor.  Normally  the  case  should  be 
tried  in  the  earl's  feudal  court,  by  the  other  vassals 
of  the  earl,  on  its  merits  without  reference  to  the  spe- 
cial interests  of  the  earl  who  has  no  voice  in  making 
the  judgment  of  the  court.16  But  A  finds  it  impos- 
sible to  get  it  tried;  probably  the  earl  does  not  wish 
it  to  come  to  trial.  This  is  a  case  of  defect,  or  default 
of  justice — one  of  frequent  occurrence  in  the  feudal 
age.  What  is  A  to  do?  If  he  trusts  to  the  earl's 
justice  only,  which  he  is  bound  to  do  under  the  feudal 
law,  his  case  is  lost.  But  he  may  appeal  to  the  king. 
It  is  the  king's  business  to  see  that  justice  is  done  to 
all  his  subjects  and  though  in  the  feudal  system  in- 
terpreted strictly  a  case  between  the  earl  of  Oxford 
and  the  earl's  vassal  is  no  business  of  his  and  he  has 
no  right  to  interfere,  except  by  way  of  the  regular 
feudal  appeals,  in  the  other  conception  of  his  office 
as  king  he  has  the  right.  Therefore  A  obtains  from 
him  a  writ  of  right — an  order  that  right  be  done — 

15  See  note  A  at  the  end  of  the  chapter  (p.  90). 

16  See  note  B  at  the  end  of  the  chapter  (p.  94). 

[79] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

addressed  to  the  earl  of  Oxford  commanding  him 
to  do  justice  to  A,  that  is,  to  try  the  case  in  his 
court,  and  informing  him  that  if  he  does  not  do  so, 
some  officer,  or  person,  specified  by  name  in  the  writ, 
will  do  it.  That  is,  the  king  clearly  acknowledges  the 
first  right  of  the  earl  to  try  the  case,  if  he  will,  but  he 
asserts  for  himself  another  right,  to  remove  the  case 
from  the  earl's  court,  if  the  earl  will  not  try  it,  and 
to  cause  it  to  be  tried  in  some  court  of  his  own,  thus 
breaking  entirely  the  chain  of  operations  as  they 
would  occur  in  the  ordinary  course  of  things.17 

The  Preecipe  quod  reddat  was  the  same  in  principle 
as  the  writ  of  right,  but  it  was  somewhat  more  simple 
in  character  and  it  was  a  more  direct  interference  with 
the  private  jurisdiction  of  the  feudal  baron.  It  was 
obtained  by  the  complainant  and  was  addressed  to 

17  Such  a  case  on  removal  from  the  baron's  court  was  usually  tried  by 
the  sheriff  in  the  county  court,  but,  it  should  be  observed,  not  as  acting 
in  his  ordinary  capacity  as  sheriff,  but  as  a  special  commissioner,  or 
king's  justice,  under  the  writ  (per  breve  domini  regis,  Glanvill,  I.  4), 
and  the  county  court  in  such  a  case  becomes  a  king's  court,  the  king's 
county  court.  How  the  king's  writ  would  be  treated  in  a  baron's  court 
disposed  to  obey,  is  shown  in  an  interesting  early  case.  In  1121,  accord- 
ing to  the  record,  there  was  brought  to  the  court  of  the  bishop  of  Bath 
a  writ  of  William,  son  of  Henry  I.,  reading:  Praecipio  ut  saisias  Modber- 
tum  juste  de  terra  quam  tenuit  Grenta  de  Stoca,  sicut  haereditavit  eum 
in  vita  sua.  The  writ  having  been  read  before  the  court,  the  bishop 
said:  Sicuti  per  has  mihi  litteras  a  filio  Domini  mei  mandatum  est  fieri, 
si  tamen  justum  est  acquiesco.  Vos  autem,  vos  amici  mei  et  Domini, 
qui  propter  apostolicum  diem  solenniter  huic  adestis  curias,  quid  in  hoc 
justius  sit  discutere  precor  dignemini.  The  case  then  went  to  trial  and 
was  finally  decided  by  a  committee  of  the  court  in  favor  of  the  defend- 
ant, the  bishop's  church.  Bigelow,  Placita,  p.  114-117,  from  Madox,  I. 
110-112.  See  chapter  III,  note  8. 

[80] 


INSTITUTIONAL  INTRODUCTION 

the  sheriff,18  commanding  him  to  require  the  defend- 
ant to  return  to  the  plaintiif  a  specified  piece  of  land 
of  which  the  plaintiff  had  complained  to  the  king  that 
he  had  been  unjustly  disseised,  or  if  he  does  not  do  so 
to  appear  before  the  king,  or  the  king's  justice,  at  a 
certain  time  and  place,  and  explain  why  he  has  not 
obeyed  the  king's  order. 

It  will  be  seen  at  once  that  this  writ,  unlike  the  writ 
of  right,  ignores  entirely  the  baron's  court.  It  starts 
out  with  the  assumption  that  the  plaintiff's  cause  is 
just  and  begins  with  a  flat  command  to  the  defendant 
to  act  upon  that  view  of  the  case.  The  king  arrogates 
to  himself  the  right  to  correct  a  piece  of  injustice  by 
a  direct  order,  as  if  he  were  commanding  an  army  in 
the  field.  Then  the  writ  goes  on  to  admit  that  the 
defendant  may  disobey.  He  may  have  a  different 
view  from  the  plaintiff  of  what  is  just  in  the  given 
instance.  In  that  case,  however — and  here  should  be 
noticed  the  completeness  and  the  skill  with  which  the 
writ  dodges  the  difficulty  created  by  the  lord's  right 
of  jurisdiction — he  owes  an  explanation  to  the  king 
of  his  act  of  disobedience.  The  writ  is  not  a  direct 
summons  to  the  defendant  to  appear  before  the  king's 

18  In  early  Frankish  practice  the  royal  order,  the  indiculus  commonito- 
rius,  from  which  the  writ  Praecipe  descends,  was  addressed  directly  to 
the  defendant.  See  Form.  Marculf,  I.  29,  ed.  Zeumer,  p.  60;  Brunner, 
Schwurgerichte,  pp.  78-80;  Rechtsgeschichte,  II.  137  (1892).  The  writ 
was  also  sometimes  addressed  to  the  defendant  in  the  Anglo-Norman 
practice.  See  Bigelow,  Procedure,  pp.  154-158.  On  the  Anglo-Saxon 
writ  and  its  relation  to  the  Anglo-Norman,  see  Mr.  W.  H.  Stevenson  in 
E.  H.  R.,  XI.  735. 

[81] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

justice  for  the  trial  of  the  case.  The  Anglo-Norman 
kings  never  seem  to  have  ventured  upon  so  bald  a  vio- 
lation of  the  lord's  rights  as  that  would  be.  It  directs 
something  quite  different  in  form — that  the  defend- 
ant explain  his  disobedience  of  the  king's  order,  but 
when  he  appears  before  the  justice  his  explanation 
naturally  consists  of  a  statement  of  his  view  of  the 
case,  against  which  the  plaintiff  naturally  urges  his, 
and  the  case  is  really  on  for  trial.19  The  Prsecipe  quod 
reddat  is  really  a  writ  of  evocation.  It  transfers  the 
case  bluntly  from  the  baron's  into  the  king's  court, 
without  so  much  as  by  your  leave,  but  it  says  nothing 
about  all  this.  It  proceeds  upon  an  entirely  different 
theory — the  theory  of  the  non- feudal  office  of  the  king 
to  make  general  justice  prevail.  Against  this  action 
of  the  king's  depriving  the  baron  of  his  right  to  have 
the  case  tried  in  his  own  court,  he  can  offer  no  objec- 
tion unless  he  is  ready  to  take  the  position  that  in  this 
range  of  cases  the  king  must  be  bound  by  a  strictly 
feudal  interpretation  of  his  office.20 

It  should  be  easy  to  see  the  significance  of  these 
writs  and  their  importance  as  a  means  of  interpreting 
the  constitutional  situation  of  the  first  century.  In 
both  cases  the  king  interferes  in  the  normal  operation 
of  things  in  a  way  not  provided  for  by  the  regular 
machinery  of  the  state — he  falls  back  upon  a  different 

19  Procedure  in  the  trial  of  the  case  actually  does  not  follow  this  order. 
The  court  does  not  modify  its  rules  to  suit  the  theory  of  the  writ,  but 
the  theory  is  plain  enough. 

20  See  note  C  at  the  end  of  the  chapter  (p.  96). 

[82] 


INSTITUTIONAL  INTRODUCTION 

conception  of  his  office  from  that  which  prevails  in 
the  daily  conduct  of  affairs21 — to  produce  results 
which,  in  the  first  instance,  might  occur  but  which 
would  not  under  the  circumstances  be  likely  to  occur, 
and  in  the  second  case,  the  direct  transfer  of  a  suit 
to  his  own  court,  certainly  would  not  occur,  without 
his  interference.  These  instances  are  typical  of  the 
whole  group  of  cases  which  are  to  be  called  prerog- 
ative acts. 

The  second  class  of  these  cases  mentioned  above  is 
that  of  the  appointment  of  special  commissioners,  or 
king's  justices.  The  king  wishes  to  look  with  more 
than  ordinary  care  into  certain  local  interests  of  his; 
or  to  examine  on  the  spot  a  difficult  problem  of  local 
administration  or  local  justice;  or  to  obtain  specially 
full  or  accurate  information  in  regard  to  a  question 
of  any  kind.  Instead  of  depending  upon  the  local 
officer  provided  by  the  ordinary  machinery  of  the 
government  for  such  purposes,  the  sheriff,  he  sends 
special  commissioners,  charged  with  this  particular 
duty,  and  superseding  for  these  questions  the  author- 
ity of  the  sheriff.  The  sheriff  himself  may  be  made 
a  member  of  the  commission,  or  he  may  be  made  the 
subject  of  its  examination  for  the  purposes  of  the 
commission,  or  even  to  determine  how  faithfully  he 
has  performed  his  duties,  and  whether  complaints 
which  have  reached  the  king  against  him  are  well 
founded  or  not. 

a  See  chapter  IV.,  note  24. 

[68] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

An  early  instance  of  this  action,  which  is  typical 
of  all,  is  the  process  by  which  the  great  Domesday 
survey  was  made  in  1086.  King  William  I.  wished 
to  ascertain,  chiefly  for  financial  reasons,  the  facts 
in  regard  to  every  feudal  holding  of  land  in  the  king- 
dom, whose  it  was  and  whose  it  had  been  before  the 
Conquest,  what  portion  of  it  was  cultivated,  what 
number  and  what  kinds  of  dependents  held  portions 
of  it  as  subtenants,  what  stock  it  carried  and  what 
special  sources  of  revenue  to  the  lord  there  were  in 
the  way  of  mills  and  fishponds,  whether  it  had  de- 
clined or  increased  in  value  since  the  Conquest,  and 
finally  whether  it  could  be  made  to  yield  more  to  the 
state  than  it  was  doing.  It  was  an  inquiry  so  minute 
that  it  could  be  satisfied  only  by  calling  upon  all  the 
resources  of  local  knowledge,  and  it  was  an  extraor- 
dinary undertaking  certainly  which  never  would  have 
been  entered  upon  in  the  ordinary  conduct  of  the 
government,  for  which  the  ordinary  machinery  pro- 
vided no  means  and  to  which  it  would  probably  have 
proved  itself  inadequate.  But  William,  though  he 
put  into  operation  extraordinary  machinery  to  accom- 
plish his  object,  employed  also  the  local  organization 
to  assist  it,  as  much  as  he  could.  This  combination 
of  extraordinary  machinery  created  by  the  preroga- 
tive action  of  the  king  with  the  existing  machinery 
of  the  ordinary  government  is  typical  from  the  begin- 
ning of  the  second  and  third  classes  of  prerogative 
action. 

[84] 


INSTITUTIONAL  INTRODUCTION 

To  carry  out  the  purpose  of  the  survey,  contiguous 
counties  were  grouped  together  into  districts,  the  first 
instance  of  this  kind  of  grouping  that  we  know  of  in 
English  history,  and  to  each  of  these  a  set  of  commis- 
sioners was  sent,  charged  with  conducting  the  inquiry. 
In  the  district  each  county  was  made  a  separate  unit, 
and  in  the  county  inquiries  were  made  and  action 
called  for  sometimes  from  the  county,  sometimes  from 
the  hundred  and  sometimes  from  the  vill.  The  com- 
missioners, who  were  called  barons,  a  title  which 
seems  to  imply  that  they  were  authorized  to  hold  in 
the  places  where  they  sat  a  court  having  the  powers 
of  the  curia  regis,  had  the  right  to  put  the  men  of  the 
localities,  including  the  sheriff,  upon  oath  and  to 
require  from  them  definite  answers  upon  the  points 
in  regard  to  which  the  king  wished  information. 
Here  again  we  have  a  simple  process,  admirably 
adapted  to  secure  the  desired  end,  but  all  lying  out- 
side the  scope  of  the  regular  governmental  processes, 
all  created  by  the  special  action  of  the  king. 

But  the  foregoing  is  not  quite  a  full  statement  of 
the  method  of  the  Domesday  survey.  An  institution 
was  put  into  operation  by  the  commissioners  which 
we  find  almost  always  associated  with  special  royal 
commissioners  as  a  means  by  which  they  accomplish 
the  object  for  which  they  have  been  created,  what- 
ever it  may  be.  Instead  of  putting  individuals  upon 
their  oath  and  calling  upon  them  to  answer  the 
required  questions,  they  formed  in  each  local  unit, 

[85] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

usually  in  each  hundred,  but  it  might  be  in  the  vill, 
or  in  the  county  as  a  whole,  a  body  of  selected  men, 
usually  six,  or  some  multiple  of  six,  in  number,  who 
were  sworn  and  required  as  a  body  to  reply  of  their 
common  knowledge  to  the  questions  submitted  to 
them.  This  is  the  jury — the  jure — the  body  sworn 
to  answer  truly.  In  the  Domesday  survey  the  jury 
is  employed  in  a  way  in  which  it  was  often  used  in  the 
early  ages  of  its  history,  to  get  information  for  the 
king — it  may  be  on  any  kind  of  a  question — which  it 
is  important  for  him  to  possess  but  which  he  can 
obtain  only  from  the  men  of  some  locality  who  know 
the  facts.  This  was  probably  its  earliest  use,22  and  it 
was  certainly  from  the  application  of  such  a  use  to 
similar  questions  in  cases  before  the  king's  courts  that 
the  modern  function  of  the  jury  in  the  trial  of  suits 
at  law  was  derived.  This  process  of  derivation  can 
easily  be  understood  if  we  return  to  our  example  to 
illustrate  the  writ  of  right.  The  decision  of  such  a 
question  as  that  supposed  to  be  at  issue  between  A 

22 The  Carolingian  use  of  the  jury  is  admirably  summarized  in  B runner, 
Rechtsgeschichte,  II.  524-526  (1892),  and  his  account  may  be  taken  as 
almost  as  exact  for  the  Anglo-Norman  jury  before  the  enlargement  of 
its  use  begins,  although  Brunner  gives  no  evidence  of  having  anything 
but  the  Carolingian  jury  in  mind  in  writing.  A  comparison  of  his 
account  with  the  instances  of  the  jury  process  in  England  before  the 
new  writs  begin  is  sufficient  to  show  in  one  case  how  closely  Carolingian 
English  prerogative  action  was.  The  developed  use  of  the  jury  in  the 
twelfth  century  was  also  entirely  logical,  and  together  with  that  of  the 
writ,  which  is  closely  bound  up  with  it,  serves  to  broaden  and  fortify 
the  royal  prerogative  action  as  inherited  from  the  Carolingian  empire, 
admitting  that  to  be  the  source  from  which  it  was  derived. 

[86] 


INSTITUTIONAL  INTRODUCTION 

and  the  earl  of  Oxford  may  turn  upon  who  it  was 
that  held  the  manor  in  dispute  during  the  previous 
generation.  Was  it  a  man  whose  heir  A  clearly  is,  or 
was  it  some  one  wholly  unconnected  with  him,  whose 
death  without  legal  heirs  leaves  his  manor  as  an 
escheat  in  the  hands  of  the  earl,  or  did  whoever  it  was 
hold  it  by  a  temporary  title  and  not  in  heredity  ?  The 
king's  court,  the  court  of  a  king's  commissioner  or 
justice,  to  which  the  case  has  come  under  the  writ, 
finds  it  necessary  to  get  trustworthy  information  on 
these  points,  and  in  order  to  do  so  it  makes  use  of 
the  king's  prerogative,  summons  men  from  the  local- 
ity who  are  supposed  to  know  the  facts,  as  the  royal 
commissioner  was  often  accustomed  to  do  in  other 
matters,  and  requires  them  under  oath  to  inform  the 
court  about  the  last  holder  of  this  manor  and  his  con- 
nection with  the  plaintiff  or  the  land.  Thus  is  begun 
the  use  of  the  jury  in  the  trial  of  cases  in  the  courts. 
This  whole  series  of  cases  was,  however,  during  the 
first  century  all  outside  the  ordinary  action  of  courts 
and  constitution,  even  outside  the  normal  and  ordi- 
nary action  of  the  curia  regis  itself.  The  writ  of 
right,  the  special  commissioner,  the  jury,  was  the 
king's  only.  No  one  could  get  his  special  case,  his 
suit  at  law,  his  complaint  of  injustice,  before  a  royal 
justice,  or  have  the  use  of  a  jury  to  prove  the  facts 
which  were  essential  to  his  case,  unless  he  got  the 
king's  permission  in  advance,  a  permission  which  was 
involved  in  the  writ  which  he  obtained  commanding 

[87] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

his  opponent  to  do  him  right.  These  were  special 
royal  processes  and  they  formed  no  part  of  the  ordi- 
nary machinery  of  government  from  which  baron  or 
common  freeman  must  seek  justice  if  he  did  not 
choose  to  invoke  the  king's  special  intervention. 

The  first  century,  however,  was  not  a  stationary 
age.  There  was  in  the  course  of  it  a  good  deal  of 
development  in  the  use  of  these  processes,  so  much 
indeed  that  when  Henry  II.  carried  them  on  into  the 
great  age  of  their  history  scarcely  anything  seemed 
to  be  added  to  what  was  already  at  least  occasionally 
in  practice.  Under  William  I.  the  instances  of  their 
use,  which  are  not  few,  are  wholly  individual,  uncon- 
nected and  sporadic.  We  find  no  hint  of  any  sys- 
tematic employment  of  them,  or  of  any  tendency  on 
the  part  of  the  king  to  believe  that  a  development  of 
them  might  add  greatly  to  the  strength  and  efficiency 
of  his  government.  Under  Henry  I.  the  instances 
of  their  use  multiply  rapidly,  or  at  least  the  evidence 
of  their  use  which  has  come  down  to  us.  This  is  par- 
ticularly true  of  the  writs,  of  which  we  have  large 
numbers  from  his  reign,  but  more  interesting  still  are 
the  indications  which  we  get  of  the  frequent  employ- 
ment of  special  king's  justices.  These  processes  are 
indeed  so  constant  and  characteristic  features  of  the 
documentary  material  of  the  reign  that  when  we  take 
a  comprehensive  view  of  it  we  find  ourselves  almost 
inevitably  tending  to  believe  in  their  more  regular  and 
systematic  use  than  we  can  prove  specifically  to  have 

[88] 


INSTITUTIONAL  INTRODUCTION 

been  the  case.  It  is  altogether  probable,  however, 
that  the  documents  as  we  have  them  fairly  represent 
the  actual  stage  of  development  reached  at  the  time, 
with  the  barely  possible  exception  of  a  more  regular 
employment  of  the  special  justice  in  the  capacity  of 
the  later  itinerant  justice.  We  may  at  least  believe 
in  the  unusual  political  ability  of  Henry  I.,  and  in 
the  clearness  with  which  he  saw  the  value  of  these 
institutions  to  the  central  government  and  that  he 
showed  the  way  to  the  greater  results  which  were 
possible  for  his  grandson.  If  so  the  anarchy  of 
Stephen's  reign  might  be  made  not  inadequately  to 
account  for  the  breaking  to  pieces  of  a  system  not  yet 
iirmly  established  by  time,  but  it  is  true,  as  I  have 
already  said,  that  when  we  get  our  first  evidence  of 
the  later  regularized  and  systematized  use  of  these 
practices,  their  aspect  is  not  so  much  that  of  the  frag- 
ments of  an  older  system  as  of  new  beginnings. 
These  beginnings  were  made,  so  far  as  we  now  know,23 
in  Normandy  and  not  on  English  soil,  under  a  gov- 
ernment at  the  moment  not  connected  with  England, 
and  they  open  a  new  age — the  first  great  age  of 
growth  in  the  history  of  the  English  Constitution. 

23 See  the  article  of  Professor  Haskins  on  the  early  Norman  jury, 
A.  H.  R.,  VIII.  613-640,  and  below  chapter  III.,  note  2. 


[89] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

NOTE  A.     PRIVATE  JURISDICTION  AND  THE  JUDICIAL  POSITION  OP 
THE  COMMON  FREEMAN 

(Page  70.) 

THE  statement  of  the  jurisdiction  of  the  feudal  court  made  in 
the  text  is  that  of  the  feudal  court  strictly  interpreted,  and  as 
such  it  is  true  of  all  countries  where  feudalism  existed.  But 
probably  in  all  countries,  certainly  in  most,  this  court  was  made 
to  serve  other  purposes  also,  and  in  respect  to  these  additional 
functions  there  is  no  general  agreement.  See  the  discussion  of 
this  subject  in  Flach,  Origines  de  L'Ancienne  France,  vol.  I., 
Book  II.,  especially  chapters  VIII.  and  IX.  He  emphasizes: 
La  distinction  entre  la  cour  des  pairs  siegeant  comme  vassaux 
et  la  cour  des  pairs  siegeant  comme  fideles  [subjects] — distinc- 
tion qu'il  ne  faut  jamais  perdre  de  vue,  sous  peine  de  ne  rien 
comprendre  au  fonctionnement  de  la  justice  pendant  les  Xe  et 
XIe  siecles  ni  a  son  sort  ulterieur.  In  England  the  common  free- 
hold within  a  manor  might  fall  under  the  care  of  a  court  which 
should  have  been  strictly  feudal,  and  such  a  court  might  also 
serve  as  a  kind  of  supervising  court,  or  court  of  higher  jurisdic- 
tion, for  the  separate  manorial  courts  which  were  included  in  the 
barony  or  honour.  See  the  cases  coming  before  the  court  of  the 
honour  of  Broughton,  Maitland,  Manorial  Courts,  Selden  Society, 
vol.  II.  It  is  the  existence  of  the  common  freehold  which  is 
neither  feudal  nor  servile,  and  of  the  common  freeman  who  is 
neither  serf  nor  vassal,  which  renders  the  subject  of  private  and 
local  jurisdictions  in  England  peculiarly  complicated,  in  addi- 
tion of  course  to  the  fact  that  private  jurisdictions  in  England 
never  obtained  full  liberty  of  development. 

On  this  situation,  and  the  reasons  for  it,  I  may  repeat  from 
the  American  Historical  Review,  vol.  VII.  p.  18:  It  seems  more 
than  probable  that  the  personal  freedom  of  the  holder,  not  the 
character  of  the  holding,  is  what  accounts  originally  for  the 
features  common  to  these  tenures  and  the  feudal  proper.  If 

[90] 


INSTITUTIONAL  INTRODUCTION 

tenure  only  had  been  in  question  the  result  would  probably  have 
been  the  same,  in  regard  to  judicial  position,  as  that  in  France. 
The  man  is  personally  free  and  a  part  of  the  same  political  organ- 
ization with  the  holder  of  the  manor.  His  small  farm  has  been 
drawn  into  the  manorial  organization  by  his  economic  depend- 
ence, or  by  his  need  of  protection  in  turbulent  times,  or  he  has 
himself  taken  a  holding  formed  in  the  manor,  but  in  either  case 
on  a  footing  different  from  those  who  hold  servile  tenures  in  the 
manor.  He  thus  stands  from  the  start  in  a  double  relationship. 
The  causes  which  have  created  his  holding  draw  him  into  the 
manorial  organization,  and  bring  him  into  a  relationship  far 
closer  to  the  class  below  him  than  to  the  class  above.  As  an 
individual,  however,  in  relation  to  public  affairs,  he  is  classed 
and  acts,  so  far  as  he  acts  at  all,  with  the  higher  class,  though 
he  stands  certainly  in  the  background,  and  is  apparently  always 
a  second  choice.  As  these  public  relations  become  feudalized,  the 
judicial  for  example,  he  belongs  on  one  side  to  the  feudal  system. 
As  the  feudal  interpretation  becomes  the  prevailing  one,  the 
temptation  is  especially  strong  to  apply  it  to  the  customary  free- 
hold, which  is  certainly  not  servile  and  whose  holder  acts  in  many 
capacities  with  the  knight.  It  becomes  easy  to  attach  feudal 
incidents  like  homage  to  such  holdings.  The  confusion  in  this 
borderland  is  greater  in  England  than  on  the  continent  partly 
because  the  local  political  organization  retains  there  through  all 
the  feudal  age  so  much  more  importance,  and  partly  because 
when  the  national  judicial  system  arises,  royal  and  anti- feudal,  it 
finds  no  reason  for  recognizing  a  distinction  between  these  classes 
which  the  local  system  had  not  recognized  and  every  reason  for 
not  doing  so.  It  is  an  important  fact,  however,  that  while  the 
thirteenth  century  tends  to  carry  over  into  the  class  of  common 
freeholds  some  holdings  that  would  earlier  have  been  called 
feudal,  it  does  not  show  the  least  tendency  to  obliterate  the  essen- 
tial legal  distinctions  between  the  two  classes  of  tenures.  Little- 
ton shows  that  this  drift  out  of  the  strictly  feudal  class  went 
afterwards  somewhat  further,  but  the  distinction  is  still  perfectly 
clear,  and  remains  so  as  long  as  feudal  tenures  proper  exist  in 

[91] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

England.  Legally  the  payment  of  scutage  and  the  character  of 
wardship  were  distinguishing  marks. 

This  double  position  of  the  common  freemen  indicates  a  com- 
plicated enough  judicial  relationship.  Within  the  manor  they 
were  members  of  the  lord's  manorial  court  for  manorial  customs 
and  questions,  "and  there  the  serfs  were  their  peers;  but  they 
were  also  members  of  the  old  national  courts  of  hundred  and 
shire,  and  there  they  were  the  peers  of  knights  and  barons" 
(Polit.  Hist.  EngL,  II.  16;  cf.  E.  H.  R.,  XXI.  566-567),  acting 
constantly  with  the  knights  and  the  representatives  of  the  barons 
in  the  king's  county  courts  both  on  accusing  and  civil  juries  and 
in  the  assessment  of  taxes.  See  Stubbs,  S.  C.,  pp.  143,  148,  257, 
259,  367.  For  the  twelfth  and  thirteenth  centuries,  it  would  be 
of  course  a  very  narrow  application  of  the  word  "peer"  to  make 
it  refer  to  trials  only,  but  I  am  not  aware  that  the  presence  of  the 
common  freeman  on  the  jury  in  the  national  courts  was  ever 
objected  to,  though  that  of  servile  holders  was.  See  Pipe  Roll 
Soc.,  XIV,  38  (also  in  Hall,  Form.  Legal  Records,  p.  207)  ; 
Madox,  I.  546,  s  and  t.  The  case  of  a  baron  came  rarely  before 
any  county  court,  even  the  king's,  for  final  trial  in  an  important 
matter,  and  when  it  did  undoubtedly  the  presence  of  the  common 
freeholder  on  the  jury  might  be  protested  (cf.  Tres.  Anc.  Cout., 
c.  XXVI.),  but  in  recognitions  in  civil  cases  in  the  itinerant  jus- 
tice court  it  seems  not  to  have  been,  and  the  presenting  juries  not 
infrequently  call  attention  to  the  cases  of  men  of  baronial  rank 
and  upon  the  returns  made  by  such  juries  the  court  may  act. 
See  Maitland,  Select  Pleas  of  the  Crown,  Selden  Soc.,  I.  cases  44, 
50;  Maitland,  Pleas  of  the  County  of  Gloucester,  cases  154,  209, 
308. 

The  passage,  a  part  of  which  is  cited  above  from  the  Political 
History  of  England,  manifestly  did  not  refer  to  the  lord's  feudal 
court  proper,  but  there  the  situation  was  the  same,  as  may  be 
seen  in  the  records  of  the  court  of  the  honour  of  Broughton  cited 
above.  See  pp.  6l,  76.  The  baronial  members  of  that  court 
were  constantly  being  distrained  by  judgment  of  the  court.  See 
p.  62.  Still  more  important,  the  rendering  of  military  service  was 

[92] 


INSTITUTIONAL  INTRODUCTION 

apportioned  by  common  freemen.  See  p.  76.  That  is,  such  a 
strictly  feudal  matter  is  the  business  of  the  court,  not  of  the 
feudal  tenants  merely.  When  the  feudal  court  proper  disappears, 
as  it  seems  to  be  doing  rapidly  in  the  second  half  of  the  thirteenth 
century,  and  courts  of  manors  come  to  act  more  generally  than 
they  had  before  as  courts  baron,  it  seems  altogether  probable 
that  the  baronial  element  proper  drops  out  of  these  courts  en- 
tirely and  the  common  freemen  with  the  holders  of  small  military 
tenures,  who  were  practically  almost  in  the  same  position  with 
them,  become  the  constituent  and  operative  members  of  the 
court.  This  should  be  the  great  age  of  the  origin  of  courts  baron, 
but  it  seems  to  me  that  we  can  hardly  explain  all  the  facts  regard- 
ing private  jurisdictions  in  England  without  supposing  that  such 
courts  had  existed  in  fact  if  not  in  name  in  many  cases  from  the 
Norman  Conquest.  In  the  operation  of  the  court  baron  the 
freeman  might  possibly  be  brought  into  relations  with  unfree 
tenants  which  would  be  even  more  decidedly  opposed  in  theory 
at  least  to  feudal  ideas  of  "peerage"  than  in  the  manorial  courts. 
In  the  operation  of  the  manorial  courts  proper  the  action  together 
of  common  freemen  and  serfs  as  peers  of  the  court  hardly  needs 
illustration.  Such  cartularies  as  those  of  Ramsey  and  Gloucester 
are  full  of  instances,  in  the  extent  juries  for  example.  For  the 
use  of  the  word  "peer"  in  such  a  connexion  see  Ramsey,  I.  54. 
On  this  and  related  questions  see  Maitland,  Manorial  Courts, 
Selden  Soc.,  II.  pp.  Ixviii.-lxxiii.,  a  passage  which  shows  admir- 
ably the  difficulty  of  the  subject  in  its  widest  form,  but  it  is  to 
be  noted  here  again  that  the  word  "peer"  in  the  phrase  judicium 
parium  is  used  in  a  special  and  restricted  sense.  On  the  French 
roturier,  in  comparison  with  the  English  common  freeman,  see 
Esmein,  Histoire  du  Droit  Frangais  (1898),  pp.  241-242,  and  on 
his  judicial  position  especially,  pp.  222,  255-256. 

The  mixed  jurisdiction  of  any  particular  private  court,  the 
confusion  of  the  three  types  of  jurisdiction  in  such  courts,  in 
England  should  not  lead  us  into  the  error  of  supposing  that  any 
sharp  distinction  between  the  three  is  arbitrary  and  theoretical. 
They  remain  distinguishable  so  long  as  feudalism  retained  any 

[93] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

significance,  and  the  ability  to  distinguish  between  them  is  of 
great  assistance  in  understanding  many  puzzling  facts.  The 
causes  already  indicated,  the  strong  Norman  centralization  and 
the  position  of  the  common  freeman,  tended  in  one  direction  to 
make  feudal  jurisdiction  proper  of  little  importance  and  without 
political  significance,  and  in  another  to  confine  public  jurisdiction 
in  private  hands  to  affairs  of  minor  importance.  It  is  probable 
that  even  from  the  beginning  all  private  jurisdiction  was  chiefly 
of  economic  interest  to  the  lord.  But  such  a  condition  of  things 
does  not  in  the  least  tend  to  show  that  these  distinctions  did  not 
exist.  The  German  systems  of  Dienstrecht,  developed  for  a 
class  which  was  really  a  vassal  class,  and  passed  ultimately  into 
the  nobility,  but  which  was  not  allowed  any  standing  in  feudal 
law  proper  because  it  was  technically  servile,  show  how  sharply 
the  distinction  was  sometimes  drawn  on  the  continent. 

NOTE  B.    THE  LORD'S  CASES  IN  His  OWN  COURT 

(Page  79.) 

THE  question  whether  the  lord  could  be  sued  in  his  own  court  is 
one  of  considerable  difficulty.  The  History  of  English  Law  is  of 
the  opinion  that  he  could  not  be:  "On  the  other  hand  the  lord 
cannot  be  sued  in  his  own  court;  this  is  as  true  of  him  as  it  is  of 
the  king.  The  proper  feudal  course  for  one  who  claims  to  hold 
land  of  X  but  cannot  get  that  land  is  to  demand  justice  from  X, 
and  if  this  demand  fails  to  go  to  the  court  of  X's  lord.  A  lord 
distrained  to  answer  in  his  own  court  is  the  most  startling  anomaly 
of  the  ancient  demesne."  P.  and  M.,  I.  589. 

I  am  not  prepared  to  say  that,  tested  by  the  technical  forms  of 
procedure  in  any  given  case,  this  statement  is  not  correct.  I 
think  it  is  at  least  questionable,  and  evidence  as  to  technical  pro- 
cedure in  the  baronial  courts  seems  to  me  too  scanty  for  definite 
assertion.  But  however  it  may  be  as  to  the  technical  forms  into 
which  cases  were  thrown,  there  can  be  no  question  but  that  the 
evidence  indicates  the  trial  of  cases  in  the  lord's  court  in  which 

[94] 


INSTITUTIONAL  INTRODUCTION 

the  lord  was,  on  the  merits  of  the  case,  the  defendant,  for  example, 
in  the  cases  referred  to  in  the  following  writs.  Henricus,  rex 
Anglias,  Henrico  comiti  de  Warewic  et  Willielmo  vicecomiti,  salu- 
tem.  Si  Goscelinus  quid  clamaverit  in  terra  Santae  Mariae  de 
Abbendona,  quam  habet  apud  Hyllam,  praecipio  ut  ipse  Goscelinus 
eat  in  curiam  abbatis,  et  ipse  abbas  sit  ibi  ei  ad  rectum ;  et  defendo 
ipsi  abbati,  quod  non  respondeat  inde  Goscelino  in  alio  loco. 
Chronicon  de  Abingdon,  II.  93.  Stephanus,  rex  Angliae,  R.  parvo, 
salutem.  Si  cognoscis  quod  debeas  tenere  virgatam  terras  quam 
tenes  in  Quedesleya  de  abbate  Glocestriae,  tune  praecipio  tibi  quod, 
desicut  abbas  dicit  quod  rectum  in  ea  non  habes,  aut  eas  in  curiam 
ejus  dirationare  quod  tua  esse  debeat,  vel  dimitte  ei  terram  suam 
sicut  justum  fuerit.  Et  nisi  feceris  M[ilo]  Gloucestriae  faciat, 
Cart.  Glouc.,  II.  96.  In  both  these  cases  the  writs  were  undoubt- 
edly solicited  in  the  abbot's  interest,  to  secure  the  trial  of  the 
case  in  a  court  presumably  favorable  to  him,  but  in  both  the  suit 
is  clearly  against  the  abbot.  That  is,  he  is  virtually  the  defend- 
ant. Cases  with  a  similar  presumption  may  be  found  in  the 
Ramsey  Cartulary,  I.  233,  No.  145;  237,  No.  157;  245,  No.  169. 
In  the  Latin  translation  of  the  Leis  Willelme  (1090-1135;  trans- 
lation made  about  1200),  c.  23  reads:  Si  voluerit  quis  conven- 
tionem  terre  tenende  adversus  dominum  suum  disracionare,  per 
pares  suos  de  eodem  tenemento,  quos  in  testimonium  vocaverit, 
disrationabit,  quia  per  extraneos  id  facere  non  poterit.  Lieber- 
mann,  Gesetze,  I.  511  (ed.  Matzke,  p.  20).  Cf.  Libri  Feudorem, 
II.  16.  The  reference  to  the  lex  Conradi  in  the  passage  in  the 
Libri  Feudorum  is  to  the  constitution  of  1037,  second  paragraph, 
Mon.  Ger.  Hist.  Legum  Sectio,  IV.  T.  I.  90,  clearly  implying 
the  decision  of  cases  against  the  lord  in  his  own  court.  There 
can  be,  I  think,  little  doubt  about  the  matter  on  the  continent. 
See  Luchaire,  Manuel  Inst.  Franq.,  p.  203 ;  Glasson,  Hist.  Droit 
de  la  France,  IV.  363.  In  Normandy  in  1198  it  is  recorded  that 
Thomas  de  Brikevilla  reddit  compotum  de  70  solidis  pro  10 
besanciis  pro  habenda  recognitione  de  finibus  factis  in  curia 
Fulconis  Paganelli  versus  eundem  Fulconem.  Stapleton,  Magni 
Rot.  Scacc.  Norm.,  II.  297;  Thomas  was  a  vassal  of  Fulk's,  cf. 

[95] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

Ibid.,  p.  x.  See  a  suit  against  a  right  claimed  for  the  lord  in 
Round,  Calendar,  p.  81,  No.  232. 

To  "demand  justice"  of  the  lord  was  not  to  demand  that  the 
lord  at  once  accept  the  plaintiff's  view  of  his  case  and  act  accord- 
ingly. It  was  to  demand  a  trial  of  the  case  in  the  lord's  court, 
and  default  of  justice  was  most  often  committed  by  refusing  a 
trial,  by  denying  the  court  to  the  vassal  (vetare  curiam).  A  lack 
of  evidence  of  suits  against  the  lord  in  his  own  court  in  the  thir- 
teenth century,  after  the  operation  of  the  king's  courts  becomes 
extensively  developed,  is  not  to  be  taken  as  proof  of  the  state  of 
things  in  the  eleventh  and  twelfth  centuries,  and  in  general  this 
is  one  of  the  points  on  which  evidence  from  the  second  half  of 
the  thirteenth  century  must  be  used  with  caution.  It  will  be 
noticed  that  the  bringing  of  a  criminal  appeal  against  the  lord 
has  not  been  considered  in  this  note,  nor  cases  in  which  the  lord 
is  a  plaintiff  in  his  own  court,  and  distraint  of  the  lord  is  also  a 
different  matter.  On  this  last  see  Ass.  de  Jer.,  Jean  d'Ibelin,  cc. 
243-244.  On  a  case  of  the  king's,  though  not  necessarily  as 
defendant,  see  the  interesting  stipulation  by  the  abbot  of  Abing- 
don  of  a  right  to  his  vassal's  counsel  in  the  curia  regis,  nisi  contra 
regem  placitandum  forte  fuerit,  Chron.  Ab.,  II.  133. 

NOTE  C.     ON  GLANVILL,  XII.  25 

(Page- 83.} 

ON  the  Carolingian  prototypes  of  the  writs  of  right  and  the 
Praecipe  writs,  from  which  they  probably  descended,  and  on  the 
fundamental  right  of  the  sovereign  on  which  they  were  based, 
the  same  as  that  underlying  the  system  of  equity,  see  B runner, 
Schrvurgerichte,  pp.  73-83,  407-413;  Rechtsgeschichte,  II.  137; 
Flach,  Origines,  III.  366,  372-373.  On  the  question  of  the  lack 
of  documentary  evidence  to  prove  the  intervening  line  of  con- 
nection, in  the  case  of  the  somewhat  wider  appeal  of  default  of 
right  in  general,  see  Viollet,  Institutions  Politiques  de  la  France, 
II.  213-214,  words  which  apply  equally  well  to  the  problem  of 

[96] 


INSTITUTIONAL  INTRODUCTION 

the  connection  of  any  feature  of  the  Anglo-Norman  constitution 
with  the  Carolingian,  and  see  Brunner,  Schwurgerichte,  pp.  60- 
62;  127-131. 

The  immediate  institutional  basis  of  these  writs  in  the  Anglo- 
Norman  practice  since  the  Conquest  seems  quite  clear.  In  addi- 
tion to  Brunner's  Schwurgerichte,  see  in  more  detail  Bigelow, 
Procedure.  The  ethical  basis,  the  fundamental  right  upon  which 
the  king  rests  his  action,  seems  equally  clear.  When  we  pass  on, 
however,  to  another  principle  which  is  stated  in  Glanvill  in  un- 
mistakable terms,  we  are  confronted  by  a  serious  difficulty.  Glan- 
vill, XII.  25  reads:  Praeterea  sciendum,  quod  secundum  consue- 
tudines  regni  nemo  tenetur  respondere  in  curia  domini  sui  de 
aliquo  libero  tenemento  suo,  sine  precepto  domini  regis  vel  ejus 
capitalis  justicie.  There  is  stated  in  these  brief  words  the  most 
extraordinary  and  the  most  sweeping  of  all  the  regulations  by 
which  Henry  II.  attacked  the  feudal  system.  If  it  is  established 
as  a  recognized  principle  of  the  law,  the  whole  foundation  of 
legality  on  which  rested  baronial  jurisdiction  proper  is  destroyed 
at  a  single  blow.  The  baron's  court  of  vassals  has  henceforth  no 
logical  existence;  it  goes  on  only  by  sufferance  of  the  king.  If 
the  baron  can  no  longer  of  himself  distrain  his  vassal  to  perform 
one  of  the  primary  duties  of  the  feudal  relationship,  to  answer  in 
his  court  to  a  suit  begun  against  him,  his  ability  to  maintain  his 
jurisdiction  against  any  kind  of  an  attack  is  at  an  end,  and  the 
foundation  of  feudal  duty  upon  which  it  rests  is  destroyed.  I 
do  not  of  course  intend  to  be  understood  as  asserting  that  feudal 
jurisdiction  as  a  practical  fact  was  actually  brought  to  an  end 
by  this  principle,  but  only  that  its  destruction  was  logically  in- 
volved. The  Petition  of  the  Barons,  c.  29  (1258,  Stubbs,  S.  C., 
p.  386),  shows  one  method  by  which  an  attempt  had  been  made 
to  protect  feudal  jurisdiction  against  the  operation  of  the  writ 
of  right — a  method  wholly  in  accordance  with  feudal  law,  and 
developed  possibly  through  encouragement  given  by  Magna 
Carta,  c.  34,  though  this  clause  refers  to  the  writ  Prsecipe,  and 
not  to  the  writ  of  right.  See  Glanvill,  XII.  7,  2.  Perhaps  some 
similar  method  had  been  discovered  for  this  other  case. 

[97] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

So  surprising  is  the  dictum  of  Glanvill  that  one  is  tempted  to 
deny  the  evidence  of  his  senses.  The  proof  that  it  existed  as  a 
part  of  the  actual  law  is  not  large  in  amount  but  it  seems  indis- 
putable. The  statement  in  Glanvill  is  perfectly  definite.  It  can- 
not be  mistaken.  So  far  as  I  know  it  is  the  only  evidence  for  the 
twelfth  century.  That  the  principle  was  secundum  consuetudines 
regni  as  the  passage  in  Glanvill  says  has  never  been  shown. 
According  to  Brunner,  Schwurgerichte,  p.  410,  and  Maitland, 
Manorial  Courts,  p.  liv.,  it  was  not  recognized  in  Normandy.  In 
1207  John  extended  the  principle  by  letters  patent  to  Ireland. 
Rot.  Pat.,  p.  76.  Bracton,  f.  106,  states  it  as  clearly  as  Glanvill, 
but  gives  no  evidence  of  its  enforcement  in  the  courts.  The  Pro- 
visions of  Westminster,  c.  18  (Stubbs,  S.  C.,  p.  404),  demanded 
that  it  should  be  regarded.  I  know  of  no  other  evidence  of  its 
existence  down  to  the  end  of  Henry  III.'s  reign.  But  this  surely 
ought  to  be  enough.  It  certainly  creates  a  presumption  which  it 
would  not  be  easy  to  overthrow.  When,  however,  we  raise  the 
questions  how  such  a  principle  came  into  existence  and  on  what 
foundation  of  right  it  could  be  rested,  we  are  at  a  loss  for  any 
answer.  Nothing  on  the  feudal  side  of  things  can  be  made  to 
explain  it.  It  runs  directly  counter  to  all  feudal  ideas.  If  the 
Anglo-Norman  king  had  been  considered  the  fountain  of  justice 
in  so  nearly  an  ideal  way  that  no  baronial  court  was  regarded  as 
having  authority  to  try  an  important  case,  not  even  a  case  between 
two  peers  of  the  court  and  concerning  solely  a  freehold  claimed 
by  both  to  be  held  of  the  lord  of  the  court,  without  a  special 
authorization  for  the  given  case,  or  if  it  were  a  principle  of  the 
Anglo-Norman  feudal  law  that  the  rear  vassal  was  so  bound  to 
the  king  that  he  looked  to  him  alone  as  the  protector  of  his  hold- 
ing, then  Glanvill's  dictum  would  need  no  explanation,  but  of 
neither  of  these  things  is  there  any  evidence.  Brunner,  Schwur- 
gerichte, p.  411,  supposes  that  this  principle  had  its  origin  in  an 
ordinance  of  Henry  II.'s,  because  "innovations  of  the  sort  do  not 
usually  form  themselves  in  the  manner  of  customary  law,"  and 
this  explanation  has  the  weighty  support  of  Maitland,  Manorial 
Courts,  p.  liv.,  Equity,  p.  315.  Authority  so  imposing  is  to  be 

[98] 


INSTITUTIONAL  INTRODUCTION 

questioned  with  hesitation,  and  certainly  one  must  admit  that  a 
matter  so  fundamental  as  responsibility  for  court  service  could 
be  changed  by  the  growth  of  new  custom  only  very  slowly.  But 
to  me  at  least  it  seems  that  the  difficulties  in  the  way  of  supposing 
that  this  principle  was  made  law  by  an  assize,  as  it  would  be 
called  in  the  twelfth  century,  are  very  great.  It  is  hardly  to  be 
believed  that  such  an  assize  could  have  been  made,  and  all  evi- 
dence of  it  have  disappeared.  We  are  dealing  with  quite  a  differ- 
ent matter  from  the  possessory  assizes  or  the  grand  assize.  These 
might  easily  be  disguised  as  favours.  The  broad  application  of  the 
writ  of  right  is  of  gradual  growth,  and  its  ultimate  significance 
might  easily  escape  the  baron  because  of  its  close  connection  with 
the  recognized  feudal  appeal  of  default  of  justice.  See  Tres. 
Anc.  Cout.,  c.  XXX.  But  a  piece  of  legislation,  an  assize  or  a 
"constitution,"  enacting  so  subversive  a  principle  as  this  as  an 
addition  to  existing  law,  attacking  a  widely  recognized  political 
and  property  right  of  all  barons,  especially  if  stated  so  bluntly 
as  it  is  in  Glanvill,  could  hardly  have  escaped  attention  or  have 
been  misunderstood.  In  reference  to  the  changes  of  Henry  II. 
in  general,  it  is  remarked  in  P.  and  M.,  I.  137,  that  "a  few  ordi- 
nances or  assizes,  those  which  seemed  most  important  to  his  con- 
temporaries, found  their  way  into  texts  of  Chroniclers."  If  this 
statement  in  Glanvill  means  what  it  seems  to  say,  and  was  given 
any  effect  in  action,  it  is  difficult  to  believe  that  any  innovation 
of  the  king's  could  have  seemed  more  important  to  his  contem- 
poraries. It  seems  far  more  likely  that  it  would  have  occasioned 
a  general  outcry  and  awakened  bitter  opposition. 

If  such  an  innovation  was  made,  we  ought  also,  I  feel  sure,  to 
be  able  to  find  some  basis  of  plausible  right  for  it  in  existing 
precedents.  This  at  least  is  what  we  can  do  for  all  other  of 
Henry's  attacks  on  feudalism.  Those  who  were  active  in  devel- 
oping these  processes  at  that  day  may  not  have  reasoned  very 
much  about  what  they  were  doing,  nor  have  thought  greatly 
about  theoretical  rights,  but  what  they  did  was  to  develop  the 
new  by  gradual  steps  out  of  the  old.  They  had  in  the  facts  of 
the  immediate  past  some  basis  of  practical  justification  for  their 

[99] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

changes,  and  in  current  ideas  some  ethical  defense,  and  these 
are  usually  not  difficult  for  us  to  find.  They  made  no  sudden  or 
violent  innovations,  nor  left  wide  gaps  in  the  line  of  their  advance. 
The  possessory  assizes  and  the  grand  assize  were  doubtless  legis- 
lative acts  as  their  name  "assize"  implies,  but  in  their  case  it 
seems  quite  certain  that  the  legislative  act  was  only  the  last  step 
in  a  gradual  progress  of  instances,  grown  customary,  by  which 
the  way  had  been  prepared  for  opening  these  royal  processes 
to  the  general  public.  I  am  quite  aware  that  in  saying  this  I 
seem  to  be  implying  that  the  principle  of  Glanvill,  XII.  25,  if 
actually  a  part  of  the  law,  was  formed  in  the  manner  of  the  cus- 
tomary law.  But  it  appears  to  me  impossible  to  account  for  it  in 
any  other  way. 

I  am  indeed  prepared  to  go  further.  The  statement  as  it  stands 
in  Glanvill  looks  to  me  less  like  a  part  of  the  customary  law  itself, 
or  an  assize,  than  like  the  obiter  dictum  of  a  judge,  or  better  of 
a  writer  on  the  law,  as  Glanvill  was,  who  is  generalizing  from 
the  observed  fact  that  the  various  writs  of  right  of  which  he  is 
discoursing  covered  so  large  a  proportion  of  all  cases  about  free- 
holds. In  XII.  c.  3  and  c.  5,  for  instance,  the  writer  must  have 
intended  to  include  all  like  instances  and  he  must  have  under- 
stood how  wide  the  application  of  these  writs  would  be  in  actual 
cases.  The  suggestion  that  in  laying  down  this  principle  the 
writer  was  thinking  chiefly  of  the  writ  of  right  and  of  what  is 
contained  in  Book  XII.  is  supported  to  some  extent  by  the  asser- 
tion of  the  same  rule  in  c.  2  at  the  beginning  of  the  book.  There 
is  nothing,  however,  in  the  book  itself,  nor  in  the  writ  of  right, 
to  warrant  so  sweeping  a  generalization.  It  should  not  be  over- 
looked that  while  the  writ  of  right  is  in  the  interest  of  the  plaintiff 
the  principle  of  Glanvill,  XII.  25,  is  in  its  application  in  the 
interest  of  the  defendant,  nor  does  it  seem  possible  that  the  writer 
of  the  Tractatus  can  have  believed,  if  he  carefully  considered  the 
matter,  that  he  had  included  under  the  cases  specified  for  the 
writ  of  right,  all  cases  affecting  freeholds  and  falling  normally 
in  the  lord's  court.  Nearly  all  the  numerous  cases  in  which  the 
lord  is  a  plaintiff  in  his  own  court  are  passed  over  without  refer- 

[100] 


INSTITUTIONAL  INTRODUCTION 

ence.  The  writ  of  right,  not  in  quite  every  case  but  nearly 
always,  goes  on  the  supposition  that  directly  or  indirectly  it  is 
addressed  to  the  lord  requiring  him  to  do  something  for  the  benefit 
of  his  vassal.  We  have  a  writ,  for  instance,  to  prevent  the  lord 
from  demanding  indebita  servitia,  but  where  is  the  writ  to  enable 
him  to  obtain  debita  servitia  withheld?  This  was,  however,  a  case 
of  frequent  occurrence,  which  might  in  the  end  lead  to  forfeiture 
of  the  holding  and  so  falling  directly  under  XII.  25.  The  very 
interesting  charter  of  Walter  de  Bolbec  to  Walter,  abbot  of 
Ramsey,  which  must  be  dated  before  the  death  of  Henry  I., 
Cart.  Rams.,  I.  153-155,  and  cf.  pp.  156,  157,  clearly  states  the 
right  of  the  lord  to  bring  suit  against  his  vassal  in  his  own  court, 
and  to  distrain  him  if  he  refuses  to  stand  to  right,  with  clear  inti- 
mation that  no  application  to  the  king  is  thought  of  as  necessary. 
Et  si  forisfeceret  abbas  aliquid  erga  dominum  Walterum,  unde 
velit  eum  implacitare,  in  curia  sua  veniet,  et  faciet  ei  rectum  sicut 

de  laico  feodo Et  si  non  venerit  abbas,  constringat  eum 

Walterus  de  Bolebech  vel  heres  per  pecuniam  suam,  sicut  de  laico 
feuodo.  Glanvill,  IX.  9  is  the  nearest  example  of  such  a  writ,  to 
be  obtained  from  the  king,  included  in  the  book,  but  its  title 
plainly  implies  that  it  is  intended  for  the  case  where  the  lord  is 
unable  to  distrain  his  man  to  stand  to  right,  which  is  again  as 
plainly  implied  in  IX.  12.  Book  IX.  8,  which  is  the  introduction 
to  c.  9,  indeed  distinctly  recognizes  the  right  of  the  lord  to  bring 
such  suits  in  his  own  court  without  the  king's  writ,  though  in 
theory  they  involve  as  final  penalty  the  loss  of  the  freehold,  for 
while,  as  a  result  of  the  general  tendency  towards  increasing  the 
vassal's  rights,  actual  practice  in  England,  as  in  other  feudal 
countries,  had  ceased  to  inflict  this  penalty,  the  change  had  taken 
place  in  practice  and  not  in  formal  law  and  the  theory  remained 
the  same.  See  £tabl.  de  S.  Louis,  I.  c.  LXXIL,  ed.  Viollet,  II. 
115.  The  writ  which  follows  in  IX.  9  just  referred  to,  is  one 
to  which,  if  we  leave  one  side  the  form  of  the  suzerain's  inter- 
ference, the  strictest  feudal  law  can  offer  no  objection,  for  which 
indeed  it  calls  as  the  normal  recourse  of  the  mesne  lord.  The 
case  would  have  been  treated  essentially  the  same  way  anywhere 


[101] 


U53ARY 
UNIVERSITY  C 

RIVERSIDE 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

in  feudal  Europe,  and  the  writs  cited  in  Bigelow,  Procedure,  pp. 
160-163,  are  to  be  similarly  explained.  If  instead  of  an  ordinary 
feudal  transaction,  there  had  been  here  an  instance  of  the  pre- 
rogative procedure  of  the  king,  the  matter  would  have  occupied 
a  much  larger  place  in  Glanvill  and  have  been  preceded  by  a 
different  explanation.  The  same  is  to  be  said  of  IX.  12.  Neither 
of  these  writs  contains  in  the  slightest  degree  any  such  inter- 
ference with  the  baron's  jurisdiction  as  that  involved  in  XII.  25. 

Nor  does  the  writ  of  right  itself  imply  in  any  sense  that  it  is 
the  only  way  in  which  a  case  can  be  brought  before  the  court  of 
the  lord.  It  rather  goes  on  the  supposition  that  normally  the 
case  would  have  been  tried  there  without  it,  that  it  is  a  failure  in 
the  lord's  obvious  duty  to  try  the  case  which  has  led  to  the  writ 
and  that  probably  after  the  order  of  the  king  has  been  made 
known  to  him  he  will  still  refuse  to  try  it  and  it  will,  therefore, 
go  to  the  king's  commissioner.  This  was  the  only  ground  indeed, 
the  ground  of  the  refusal  of  the  lord  to  try  a  case  which  he  ought 
to  try,  known  to  the  feudal  law  on  which  a  case  belonging  in  the 
court  of  a  vassal  could  be  transferred  to  the  court  of  his  suzerain, 
though  it  is  not  exactly  the  foundation  of  the  writ  of  right.  The 
appeal  of  false  judgment  concerned  a  completed  trial,  and  the 
writ  Praecipe  rested  on  a  principle  not  included  in  the  feudal  law 
in  any  form. 

The  doubt  expressed  in  Glanvill,  IX.  1,  8,  9,  is  a  very  natural 
one  to  a  writer  who  asserts  the  principle  of  XII.  25,  but  in  my 
opinion  the  whole  tenor  of  IX.  1  (the  lord  in  questions  of  this 
sort  between  himself  and  his  tenant  has  recourse  to  the  king's 
court  only  when  his  tenant  is  too  strong  to  be  distrained  by  his 
own  unaided  efforts)  is  a  much  more  accurate  statement  of  the 
law  in  actual  operation  at  that  date  than  is  XII.  25.  This  right 
of  the  lord  to  distrain  his  tenant  to  answer  in  his  own  court  con- 
cerning his  service  withheld  is  de  jure,  as  the  passage  says,  what- 
ever the  writer  may  think  in  theory  ought  to  be  the  case. 

If  this  principle  was  originally  the  writer's  own  generalization 
from  observed  facts,  once  it  had  been  stated  in  the  book,  as  it  is, 
so  as  to  seem  an  integral  part  of  the  law,  it  might  very  easily 

[102] 


INSTITUTIONAL  INTRODUCTION 

come  to  be  regarded  as  established  by  those  interested  in  the 
development  of  the  royal  judicial  system,  and  obtain  such  official 
recognition  as  in  John's  writ  to  Ireland  in  1207.  Clause  18  of 
The  Provisions  of  Westminster  referred  to  above,  seems  to  imply 
that  the  principle  had  not  been  observed  in  practice  and  to  demand 
that  it  be  made  statute  law.  I  do  not  advance  this  suggestion 
as  a  satisfactory  explanation  of  the  difficulty.  It  is  to  be  regarded 
rather  as  a  confession  that  I  do  not  know  what  else  to  do  with  it. 
The  difficulty  which  is  created  by  XII.  25  is  discussed  to  some 
extent  by  Professor  Maitland  in  his  lectures  on  the  Forms  of 
Actions  included  in  the  volume  entitled  Equity  (1909),  pp.  315- 
318.  He  suggests  that  the  king  may  have  been  "able  to  represent 
the  great  step  that  he  took"  as  "a  mere  protection  of  possession." 
But  it  is  hard  to  see  where  there  is  anything  which  indicates  such 
a  limitation  either  in  the  statement  of  the  principle  or  in  the  writs 
which  are  given  in  Book  XII.  The  writs  would  seem  to  show 
that  they  at  least  may  be  applied  for  in  any  question  of  permanent 
rights  or  status.  That  the  principle  may  in  the  end  have  seemed 
to  rest  upon  a  general  royal  right  to  protect  possession  is  very 
likely  true,  but  the  difficulty  is  to  find  some  idea  current  in  Glan- 
vill's  time,  or  in  the  generation  before  his,  upon  which  it  can  be 
based,  to  save  it  from  being  a  bald  usurpation  of  brute  force. 
I  hardly  think  the  king  can  have  been  regarded  in  the  twelfth 
century  as  having  any  exclusive  right  to  protect  possession.  That 
was  one  of  the  primary  duties  of  every  lord  in  the  feudal  hier- 
archy, and  what  destroyed  this  idea  in  England  was  the  result 
of  the  changes  we  are  considering.  They  account  for  this  further 
change,  not  it  for  them.  The  same  may  be  said  in  effect  of  what 
Maitland  says  in  the  passage  referred  to  of  the  in  capite  clause 
in  the  Praecipe  quod  reddat.  The  clause  may  have  been  used  to 
effect  a  transfer  of  the  case  in  a  later  age,  but  hardly  in  the  time 
of  origins  in  the  twelfth  century,  and  I  think  Maitland  intends 
to  imply  no  more  than  this.  In  the  feudal  law  a  claim  to  hold  of 
the  king  in  chief  would  enable  the  plaintiff  to  begin  suit  in  the 
king's  court,  if  he  chose  to  do  so,  and  a  Praecipe  writ  would  then 
be  in  place,  but  the  court  of  the  mesne  lord  was  equally  compe- 

[103] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

tent  to  try  a  case  in  which  was  raised  a  claim  to  hold  of  the  king 
in  capite,  and  there  was  nothing  about  such  a  claim  on  which  could 
be  based  the  general  use  of  the  writ  described  in  Glanvill,  nor 
any  specific  writ  there  given.  Glanvill,  XII.  5  is  very  much  to  the 
point.  It  should  be  noticed  also  that  if  this  had  been  all  that  was 
involved  in  the  suit,  c.  34  of  Magna  Carta  could  not  have  taken 
the  form  which  was  given  it.  Indeed  it  is,  I  think,  quite  possible 
that  the  in  capite  clause  came  into  general  use  in  the  writ  in  con- 
sequence of  the  prohibition  in  Magna  Carta  in  order  to  give  a 
basis  in  the  feudal  law  for  the  transfer  of  a  case  into  the  king's 
court.  See  McKechnie,  p.  410.  The  following  class  of  cases 
should  also  be  left  out  of  consideration  here.  It  would  have  been 
possible,  of  course,  for  the  king  at  any  time  to  bring  suit  against 
an  alleged  immediate  vassal  to  enforce  service,  to  which  the  de- 
fendant could  plead  that  he  held  not  of  the  king  but  of  some 
mesne  lord,  and  this  would  bring  the  facts  of  the  holding  into 
court,  but  this  was  not  what  was  desired  in  getting  the  writ,  and 
would  be  a  different  sort  of  case.  The  case  recorded  in  the  Gesta, 
I.  133-134,  is  also  exceptional,  involving  a  different  principle 
still  and  probably  is  not  fully  stated  in  the  text.  It  may  be  said, 
again,  with  much  probability,  that  in  "the  aboriginal  weakness 
and  rapid  degeneration  of  the  feudal  tribunals  and  the  dominance 
of  a  royal  court  which  does  not  love  seignorial  justice"  (P.  and 
M.,  I.  354)  we  have  the  real  underlying  reason  why  all  these 
royal  usurpations,  opposed  to  feudal  law,  could  be  carried 
through  in  England  with  so  little  appearance  of  resistance.  But 
this  fact  could  not  be  assumed  by  the  crown  as  the  justification 
of  its  action,  and  justification  of  some  kind,  some  show  of 
abstract  right,  we  can  make  out  in  every  case,  I  think,  except 
this  of  Glanvill,  XII.  25.  It  must  be  remembered  also  that  in 
some  part  at  least  the  rapid  degeneration  of  the  feudal  tribunals 
and  the  dominance  of  a  royal  court  were  results  of  the  prin- 
ciples and  practices  we  are  considering  in  this  chapter. 

It  may  be  interesting  to  add  that  shortly  before  Glanvill,  XII. 
25  was  written  the  same  result  was  accomplished  by  another 
method  in  the  Kingdom  of  Jerusalem.  In  1162  by  the  Assise 

[104] 


INSTITUTIONAL  INTRODUCTION 

sur  la  Ligece,  under  King  Amalric  I.,  the  rear  vassals  of  the 
kingdom  were  made  directly  liege  men  of  the  king  and  peers 
of  his  court,  so  that  they  were  able  to  appeal  to  its  protection  as 
directly  as  the  tenants-in-chief.  While  this  may  be  said  to  be 
carrying  further  the  Norman  principle  of  reservation  of  alle- 
giance to  the  duke,  or  king,  in  the  rear  vassal's  oath  to  his  imme- 
diate lord,  it  is  carrying  it  a  long  distance  further,  to  a  point 
never  involved  or  contemplated  in  the  Norman  practice.  The 
result  would  be  as  squarely  opposed  to  feudal  principles  as  is 
Glanvill,  XII.  25,  but  since  it  was  clearly  accomplished  by  a 
legislative  act,  no  question  of  the  right  on  which  it  rested  need 
be  raised.  It  would  be  also  unnecessary  in  the  case  of  the  dictum 
in  Glanvill,  if  there  were  evidence  that  it  was  an  assize.  On  the 
assize  of  King  Amalric  and  the  method  of  its  adoption,  see  Ass. 
de  Jer.,  ed.  Beugnot  I.  214,  Livre  de  Jean  d'Ibelin,  c.  140;  319, 
c.  199;  595,  La  Clef  des  Assises,  c.  214.  This  last  offers  us  a 
delightful  glimpse  of  the  feudal  mind  in  its  aussi  coume  les 
propres  homes  de  celle  court  said  of  the  right  in  the  high  court 
of  those  admitted  by  the  assize.  An  interesting  statement  of 
the  composition  of  the  court  which  adopted  this  assize  is  made 
in  c.  140  cited  above:  et  fu  par  la  cort  dou  dit  rei  et  dou  dit 
Girart  et  de  toz  les  barons  et  les  haus  homes  dou  reiaume  et  de 
toz  ciaus  qui  avoient  homes  qui  tenoient  fies  d'iaus  el  dit  roiaume 
et  fu  celle  assise  ensi  faite  et  establie. 


[105] 


CHAPTER  III 

THE  FIRST  AGE  OF  CHANGE 

The  reign  of  Henry  II.  is  the  first  great  age  of 
constitutional  advance  in  the  history  of  England. 
Whether  we  regard  this  advance  as  the  easy  and  al- 
most unavoidable  final  step  of  an  earlier  progress, 
the  culmination  of  a  century  of  slow  development,  or 
the  decisive  and  creative  action  of  a  political  genius, 
our  judgment  of  it  is  the  same.1  However  clearly 
the  way  may  have  been  pointed  out  by  Henry's 
grandfather  in  England,  or  by  his  father  in  Nor- 
mandy,2 it  is  in  his  time  that  these  changes  are  finally 

1  The  former  of  the  two  suppositions  seems  to  me  the  more  probable. 
There  is  too  little  evidence  to  allow  any  opinion  to  be  strongly  held,  but 
I  have  seen  no  reason  to  modify  the  inclination  expressed  in  The  Political 
History  of  England,  II.  255-258,  to  rank  the  grandfather  higher  than 
the  grandson.  Henry  II.'s  political  policy  in  France  seems  to  me  so 
clearly  lacking  in  insight  and  foresight,  so  wanting  perhaps  it  would  be 
more  accurate  to  say  in  the  signs  of  unusual  genius,  that  I  find  it  hard 
to  regard  him  as  a  constructive  genius  in  constitutional  matters.  But 
he  must  have  known  how  to  encourage  and  sustain  the  best  of  his  civil 
servants;  he  saw  the  needs  of  his  time  and  was  earnest  to  improve  the 
administrative  machinery;  he  believed  in  what  his  grandfather  had  done 
and  desired  to  follow  his  ways.  He  must  have  been  quick  to  see  the  good 
points  of  any  new  plan  proposed  and  to  take  advantage  of  useful  sug- 
gestions whenever  he  found  them.  Such  qualities  make  a  great  king, 
if  not  exactly  a  creative  genius. 

2 See  Haskins,  A.  H.  R.,  VIII.  618,  625-628.  Professor  Brunner  still 
maintains  (in  his  Oeschichte  der  Englischen  Rechtsquellen,  p.  65,  note  1, 
1909)  his  earlier  view  expressed  in  his  Schwurgerichte,  pp.  301-304,  that 
the  writs  which  contain  the  evidence  of  these  innovations  in  Normandy 
are  from  the  earlier  years  of  Henry  II.  rather  than  from  Geoffrey's 

[106] 


THE  FIRST  AGE  OF  CHANGE 

made  and  the  new  methods  become  permanently  a 
part  of  the  constitution.  As  compared  with  any 
earlier  stage  of  English  history,  his  is  an  age  of  rapid 
and  almost  revolutionary  advance.  The  first  century 
of  Anglo-Norman  history  seems  to  us  as  we  now  look 
back  on  it  one  of  comparatively  little  change.  Pro- 
cesses which  were  in  use  from  the  beginning  came 
into  more  frequent  employment.  We  begin  to  be 
able  to  distinguish  classes  in  actions  that  are  closely 
related,  whether  the  men  of  the  time  recognized  the 
distinctions  as  we  do  or  not.  There  was  some  grow- 
ing precision  of  feudal  law  and  some  increase  in  the 
practical  power  of  the  sovereign.  But  all  these 
changes  were  gradual,  by  imperceptible  steps;  there 
is  no  portion  of  the  century  of  which  we  can  say  with 
certainty  that  its  special  characteristic  is  a  series  of 
deliberate  innovations,  or  what  seem  to  be  such,  which 
introduce  an  age  of  new?  institutional  forms  and  pro- 
cesses permanently  influencing  the  constitution.  It 
is  this  that  we  can  say  of  the  reign  of  Henry  II. 

The  changes  which  give  to  the  age  its  distinctive 
character  concern  the  general  organization  and  the 
auxiliary  institutions  of  our  judicial  system  and  it  is 
in  this  respect  that  they  are  most  often  considered. 
This  is,  to  be  sure,  the  result  which  abides  in  the  con- 
time,  but  Professor  Haskins's  study  of  the  content  of  these  writs  seems 
convincing,  and  if  his  judgment  is  also  correct  (and  it  appears  to  have 
had  satisfactory  confirmation),  that  a  capital  "G"  as  a  guide  to  the 
rubricator  may  still  be  traced  in  the  margin  of  the  cartulary,  it  does 
not  seem  possible  to  avoid  his  conclusion. 

[107] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

stitution  of  today,  but  in  the  study  of  the  hundred 
years  of  active  change  from  1166  to  1266  to  regard 
these  changes  chiefly  as  the  origin  of  the  judicial  sys- 
tem, is  to  lose  the  significance  of  the  earliest  phase  of 
this  century,  and  to  a  considerable  extent  the  consti- 
tutional meaning  of  the  whole  age.  Students  of  the 
period  do  not  indeed  overlook  the  contribution  which 
these  judicial  institutions  made  in  the  course  of  time 
to  the  practical  operation  of  our  system  of  civil  lib- 
erty, especially  in  the  jury  and  in  the  principles  of 
the  common  law.  Nor  is  their  influence  in  strength- 
ening the  absolutism  of  the  Anglo-Norman  kings  and 
drawing  tighter  their  centralization  entirely  disre- 
garded. It  is,  however,  the  results  which  followed 
from  them  in  this  direction  that  I  wish  particularly 
to  emphasize,  for  however  important  they  may  have 
proved  themselves  as  special  institutions  in  securing 
the  liberty  of  the  citizen  as  against  the  executive,  far 
more  important  was  their  influence  in  leading  to  the 
limited  monarchy,  if  only  by  way  of  reaction.  This 
may  be  asserted  with  emphasis  because  the  limited 
monarchy  is  the  really  essential  feature  of  the  English 
Constitution,  that  which  made  all  else  possible,  with- 
out which  neither  the  jury,  nor  the  principles  which 
came  into  the  common  law,  nor  any  other  of  the  spe- 
cial features  of  constitutional  liberty  would  have  been 
of  any  avail. 

From  this  point  of  view  what  occurred  in  the  reign 
of  Henry  II.  is  to  be  considered  under  two  heads: 

[108] 


THE  FIRST  AGE  OF  CHANGE 

First,  the  institutional  changes  themselves,  the  fitting 
of  new  institutions  into  the  judicial  organization  of 
the  state,  and  second,  the  more  general  constitutional 
results  which  followed  from  these  changes.  First, 
the  changes  in  the  judicial  organization  consisted  in 
the  establishment  of  a  permanent  system  of  itinerant 
or  circuit  justices,  in  the  beginning  of  a  distinct 
common  law  court,  and  in  the  opening  of  the  king's 
writ  and  the  jury  to  general  use  in  both  criminal  and 
civil  cases.  In  regard  to  these  institutional  changes, 
it  is  to  be  carefully  noted  that  the  particular  thing 
which  is  done  is  not  new,  unless  it  is  possibly  in  the 
use  of  the  jury  in  criminal  justice,  and  in  this  case 
the  most  that  can  be  asserted  is  a  new  application  of 
a  familiar  process.  In  all  cases  what  is  new  is  form 
rather  than  principle.  The  innovation  which  is  of 
real  importance  consists  in  transferring  these  things 
from  occasional  prerogative  use  to  a  regular  and  per- 
manent place  in  the  ordinary  machinery  of  the  state. 
It  should  also  be  noticed  that  we  have  in  most  of  these 
cases  clearly  evident  or  clearly  implied  an  act  of  legis- 
lation by  which  the  process  concerned  was  made  regu- 
lar, indicating  some  degree  of  deliberate  action. 

To  attempt  to  describe  the  second,  or  constitutional 
results  of  these  changes  in  a  single  sentence,  or  even 
in  a  paragraph,  is  a  doubtful  experiment.  But  we 
may  at  least  go  so  far  as  to  say  that  the  great  result 
of  Henry's  reign  in  making  the  occasional,  extra- 
ordinary, prerogative  action  of  the  king  a  part  of  the 

[109] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

everyday  machinery  of  the  state,  open  at  all  times  to 
all  freemen  under  the  proper  conditions,  was  to  afford 
to  all  a  recourse  against  the  practical  results  of  feu- 
dalism, constituting  the  king  more  directly  the  pro- 
tector of  the  rights  of  all  individuals  than  the  tradi- 
tion feudal  constitution  allowed,  and  greatly  enlarg- 
ing the  field  of  the  king's  activity,  both  in  extent  and 
in  content.  This  was,  in  some  of  the  most  important 
functions  of  government,  to  create  an  organized  insti- 
tutional foundation  for  absolutism  which  had  not 
existed  in  the  feudal  constitution. 

One  who  studies  the  changes  of  the  time  from  this 
point  of  view  must  start  from  the  fact  that  they  were 
all  based  upon,  were  all  outgrowths  of,  the  preroga- 
tive action  of  the  king.  They  did  not  start  from  any 
part  of  the  regular  machinery  by  which  the  business 
of  government  had  been  carried  on  during  the 
previous  one  hundred  years,  and  they  make  no 
changes  in  it.  They  are  outside  it  in  origin  and  addi- 
tional and  supplementary  in  result.  The  starting 
point  of  them  all,  the  earlier  occasional  use  which  is 
now  generalized  into  constant  and  regular  practice, 
is  the  action  of  the  king  in  special  cases  outside  the 
ordinary  processes  of  the  state  which  has  been  de- 
scribed in  the  last  chapter.  He  now  gives  up  his 
exclusive  right  to  initiate  these  processes,  and  throws 
open  the  possibility  of  their  use  on  demand  to  any  one 
who  is  willing  to  pay  the  required  fees.  I  have 
spoken  of  this  as  change,  and  it  is  change  in  a  most 

[110] 


THE  FIRST  AGE  OF  CHANGE 

important  respect,  but  not  in  the  sense  that  it  sub- 
stitutes a  new  for  an  old  way  of  doing  things.  New 
methods  of  doing  the  same  things  are  introduced 
alongside  the  old,  but  they  do  not  modify  the  old,  or 
for  the  present  cause  any  of  them  to  disappear  though 
they  will  do  this  in  time. 

More  in  detail,  the  king's  writ,  ordering  a  thing  to 
be  done,  is  opened  to  general  use.  Anyone  may  have 
such  an  order  on  application  in  a  large  range  of  uses. 
The  king's  jury,  as  a  most  effective  method  of  getting 
at  the  facts  in  dispute,  is  also  thrown  open.  The 
king's  commissioner  specially  appointed  to  try  a  given 
case  or  to  look  into  some  interest  of  the  king's,  is 
transformed  into  a  new  local  court  visiting  the 
counties  at  regular  and  specified  intervals,  having  for 
one  of  its  chief  duties  to  superintend  and  operate  the 
new  processes.  And  finally  as  a  means  of  keeping 
this  machinery  in  constant  operation,  the  new  court 
of  special  commissioners  is  generalized  into  a  central 
court  of  the  same  functions  permanently  in  session.3 
The  writ  is  the  operative  organ  of  the  new  system  by 
which  it  is  set  in  motion  and  as  such  it  undergoes  a 
rapid  development  in  the  multiplication  and  classi- 
fication of  its  forms,  which  is  interesting  both  in  itself 
and  in  the  evidence  which  it  gives  that  the  develop- 
ment of  these  new  processes  is  a  subject  of  careful 
study  by  those  who  are  carrying  it  on.*  In  a  word, 

3  On  the  origin  and  relationship  of  the  permanent  central  court,  see  note 

A  at  the  end  of  the  chapter  (p.  136). 

*We  have  many  examples  of  the  writs  of  Henry  I.  which  have  been 

[111] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

we  may  say  that  the  king  had  made  great  progress 
towards  setting  up  over  against  the  feudal  machinery 
of  the  state,  another  independent  government  ma- 
chine, having  its  motive  force  and  authority  in  him- 
self, bringing  the  royal  authority,  as  a  protective 
power,  within  reach  of  every  freeholder  in  the  state, 
and  of  every  man  injured  by  a  crime,  and  sweeping 
away  to  this  extent  all  limitations  which  had  been  set 
to  the  king  by  feudalism.  In  doing  so  he  had  created 
a  machine  of  general  government  finding  its  sole 
motive  power  in  the  king,  and  capable  of  easy  appli- 
cation to  other  functions,  like  taxation  and  legislation. 
The  first  of  the  legislative  enactments  by  which 
these  changes  were  made  which  has  come  down  to  us 
in  documentary  form  is  the  Assize  of  Clarendon  of 
1166,  the  word  assize  having  in  this  instance  the  mean- 
ing of  an  act  of  legislation.  The  Assize  contains 

preserved  to  us  in  Vol.  II.  of  the  Chronicle  of  Abingdon  and  similar 
monastic  collections.  If  we  bring  a  large  number  of  these  together  and 
compare  them  with  the  writs  in  Glanvill,  it  is  evident  that  in  the  inter- 
vening history  of  the  writ  two  processes  have  been  going  on.  In  the 
first  place  much  attention  has  been  given  to  the  language  of  the  writ 
to  make  it  specific,  exact,  and  constant,  and  second,  considerable 
classification  of  actions  has  gone  on  and  the  principle  that  the  writ 
must  accurately  describe  the  action  intended  has  been  so  applied  as  to 
multiply  the  number  of  writs  by  a  process  like  that  of  division  and 
subdivision.  These  were,  of  course,  the  processes  which  continued  for 
another  century  and  which  created  the  great  body  of  English  writs,  the 
process  of  the  first  age  in  the  formation  of  the  common  law,  but  it  is 
here  to  be  noted  that  it  implies  previous  to  Glanvill,  and  in  his  time,  as 
expressed  in  that  book,  much  careful  study  of  judicial  operation  which 
must  have  been  conscious  and  which  may  rightly  be  called  scientific 
Facile  est  autem  inde  formare  brevia  juxta  diversa  negotia.  Glanvill, 
II.  13.  See  P.  and  M.,  II.  557  ff. 

[112] 


THE  FIRST  AGE  OF  CHANGE 

twenty-two  clauses  and  concerns  a  number  of  differ- 
ent subjects,  but  we  have  to  notice  particularly  the 
following  points.5 

First  of  all  it  is  evident  that  the  king's  special  com- 
missioner, the  royal  justice,  is  taken  for  granted.  It 
is  a  not  unnatural  interpretation  of  the  first  clause 
that  special  commissioners  are  about  to  visit  the  coun- 
ties to  put  in  operation  the  process  there  provided  for, 
but  there  is  nothing  in  the  document  which  explicitly 
says  any  such  thing.  Rather  its  whole  tone  is  that  the 
justice  upon  circuit  is  a  well  understood  institution  in 
frequent  operation  whose  presence  in  the  county  may 
be  expected  regularly,  or  at  no  long  intervals.6  This 
appears  irt  the  following  facts  implied  in  the  Assize. 
The  arrest  of  criminals  under  this  act  is  to  take  place 
constantly.  As  soon  as  proper  information  comes  to 
the  sheriff,  he  must  take  the  suspected  man  into  cus- 
tody. A  part  of  the  new  process  he  may  carry 
through  himself  but  he  cannot  finish  it.  The  final 
stage  can  go  on  only  before  the  justice,  and  the  sheriff 
must  report  his  action  to  the  justice  as  soon  as  it  has 
taken  place;  the  justice  may  be  coming  to  the  county 
in  the  immediate  future,  if  not,  he  is  likely  to  be  found 
in  some  neighboring  county,  and  there  the  sheriff's 

6  The  text  of  the  Assize  of  Clarendon  will  be  found  in  the  original,  in 

Stubbs,  S.  C.,  pp.  143-146,  and  in  translation  in  Adams  and  Stephens, 

Select    Documents    of   English    Constitutional   History,   pp.    14-18,    and 

Penn.  Transl,  I.  22. 

6  P.  and  M.,  I.  153;  Stubbs,  Oesta,  II.  bdi.  ff;  Ralph  de  Diceto,  I.  434- 

435. 

[113] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

messenger  must  seek  him  out  and  receive  direction  as 
to  where  sheriff  and  prisoner  are  to  come  before  him 
to  complete  the  trial,  plainly  not  always  in  the  county 
in  which  the  arrest  was  made.  Sheriff  and  justice  are 
spoken  of  as  if  they  were,  one  as  much  as  the  other, 
fixed  and  understood  elements  of  the  existing  situa- 
tion which  the  legislation  assumes.  Thus  the  docu- 
ment indicates  with  a  fair  degree  of  certainty  that  at 
some  earlier  date  than  1166,  whether  in  the  reign  of 
Henry  II.  or  earlier  still  is  not  implied,  the  royal 
commissioner  who  acts  in  the  first  two  Norman  reigns 
on  special  occasions  only,  had  become  a  regular  and 
expected  part  of  the  system  of  public  justice.  At 
what  date,  in  what  reign,  we  do  not  know.  No  legis- 
lation on  the  subject  has  been  preserved  to  us  and  the 
Assize  of  Clarendon  contains  none,  but  from  what 
evidence  we  can  piece  together  of  the  existence  of 
itinerant  justices  in  the  reign  of  Henry  I.  and  from 
the  degree  of  familiarity  with  the  institution  which  the 
Assize  of  Clarendon  assumes  on  the  part  of  every 
body  to  whom  it  is  addressed,  we  cannot  be  far  wrong 
in  holding  that  what  had  happened  in  the  dozen  years 
of  Henry  II.'s  reign  already  past  was  rather  a  revival 
than  a  new  foundation.  It  is  probably  then  only  in 
this  sense  that  we  may  include  the  itinerant  justice 
among  the  new  creations  of  the  period,  noting  here 
again  that  in  any  case  all  that  was  new  was  making 
an  extraordinary  and  occasional  institution  into  one 
regularly  recurring. 

[114] 


THE  FIRST  AGE  OF  CHANGE 

The  second  thing  to  be  regarded  is  a  method  of 
detecting  and  trying  criminals  and  this  has  every 
appearance  of  being  new.  What  this  method  was  we 
shall  understand  most  clearly  if  we  recall  the  king's 
prerogative  process  for  ascertaining  any  fact  which 
could  be  established  by  local  knowledge  as  it  has  been 
already  described:  the  justice  puts  certain  selected 
men  of  the  community  on  oath  to  tell  the  truth,  to 
give  a  veredictum,  and  requires  them  to  report  as  a 
body  what  they  know  about  the  specific  question,  or 
questions,  submitted  to  them.  In  the  first  clause  of 
the  Assize  of  Clarendon  we  have  merely  a  specific 
application  of  this  jury  process,  though  possibly  to  a 
new  set  of  facts. 

The  matter  to  which  it  was  applied — the  repression 
and  punishment  of  crime — was  one  which  Henry  II. 
had  apparently  found  on  coming  to  the  throne  to 
demand  immediate  attention  and  to  be  very  difficult 
to  deal  with.  At  the  moment  when  the  Assize  of 
Clarendon  was  adopted,  the  king  was  in  the  midst  of 
the  conflict  with  Thomas  Becket,  which  had  grown 
out  of  his  attempt  to  recover  some  portion  of  criminal 
justice  from  the  courts  of  the  church.  The  problem 
to  be  solved,  and  it  really  was  solved,  by  the  Assize  of 
Clarendon  was  a  somewhat  different  one — to  find  out 
in  the  first  place  who  had  committed  a  given  crime 
and  then  to  make  it  sure  that  his  trial  should  be  ade- 
quate and  speedy.  To  the  first  part  of  this  problem 
the  application  of  the  jury  method  is  so  obvious  that 

[115] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

we  are  tempted  to  express  surprise  that  it  had  not 
occurred  to  some  one  before  this  date.  So  far  as  we 
know  it  had  not.  Once  seen,  however,  the  application 
must  have  been  extremely  simple.  The  state  wants 
to  know  who  committed  a  given  crime  in  the  hundred 
of  A.  It  is  highly  probable  that  the  men  of  the  local 
community  have  their  suspicions  of  the  guilty  party, 
perhaps  know  to  a  certainty  who  he  was,  though  very 
likely  the  case  will  not  be  followed  up  and  the  crime 
will  go  unpunished  if  it  is  left  to  the  operation  of  local 
justice.7  If  the  king  interferes,  however,  and  de- 
mands of  twelve  of  the  more  solid  and  trustworthy 
men  of  the  hundred  that  under  oath  they  inform  his 
special  commissioners  appointed  for  that  purpose  of 
their  suspicions,  the  criminal  will  not  be  likely  to  es- 
cape. Once  suggested  this  procedure  must  have 
seemed  most  natural  and  simple  to  everybody.  It 
can  hardly  have  been  thought  of  as  an  innovation  at 
all,  however  new  it  may  have  been. 

The  place  which  the  action  of  the  jury  took  in  the 
formal  trial  of  the  accused,  the  modification  made  in 
the  procedure  of  the  court,  was,  however,  an  innova- 
tion, and  a  most  interesting  one,  but  what  it  was  and 
the  way  in  which  it  came  to  be  made  is  as  simple  and 
as  easy  to  understand  as  the  application  of  the  jury 
to  the  first  part  of  the  problem.  The  trial  of  an 

'  Probably  c.  VI.  of  the  Constitutions  of  Clarendon  (Stubbs,  S.  C.,  p. 
139)  states  the  situation  in  many  cases:  Et  si  tales  fuerint  qui  culpantur, 

quod  non  velit  vel  non  audeat  aliquis  eos  accusare See  P.  and  M., 

I.  151. 

[116] 


THE  FIRST  AGE  OF  CHANGE 

accused  man  in  the  old  popular  hundred  or  county 
court  passed  through  two  stages,  one  which  led  up 
to  and  was  closed  by  compurgation,  and  a  second 
which  might,  and  when  a  man  had  been  found  guilty 
probably  always  did,  follow,  ending  in  the  ordeal.  In 
these  new  trials  in  the  court  of  the  king's  justice, 
called  always  the  king's  court,  as  in  c.  5  of  the  Assize, 
the  action  of  the  jury  already  described  took  entire 
place  of  the  first  stage  leaving  only  the  second  remain- 
ing of  the  old  trial.  To  see  how  slight  a  change  such 
a  substitution  would  seem  to  make  we  must  examine 
briefly  the  compurgation  procedure  of  the  older 
court.  The  hundred  court  was  an  assembly  court. 
The  judgment  which  it  made  was  a  mass-meeting 
judgment — the  sense  of  the  community.  When  we 
know  its  procedure  in  detail  it  is  reduced  to  what 
looks  to  us  a  very  cut  and  dried  formalism  and  a  case 
seems  to  go  very  mechanically  to  its  conclusion.  Now 
and  then,  however,  we  get  glimpses  even  in  late 
cases  of  more  free  action  on  the  part  of  the  court 
which  are  very  instructive  and  it  is  not  difficult  to  get 
back  to  the  fundamental  ideas  upon  which  the  for- 
malism is  based.  It  would  seem  that  according  to 
these  ideas  the  right  of  compurgation — the  right  to 
make  the  oath  with  oath  helpers  which  wins  a  man's 
case  if  he  makes  it  successfully,  is  a  privilege.  It  is 
not  the  modern  burden  of  proof.  Quite  the  contrary. 
The  court  awards  the  oath — the  privilege  of  com- 
purgation— to  that  one  of  the  two  parties  to  the  case 

[117] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

whose  cause  it  thinks  the  more  just.8  This  is  the  first 
judgment,  the  intermediate  judgment  of  the  court, 
and  it  rests  upon  the  public  opinion  of  the  community 
as  to  the  merits  of  the  case.  That  is  why  the  formal- 
ism of  the  process  gives  the  oath  in  all  ordinary  cases 
to  the  accused,  or  the  defendent,  the  burden  of  proof 
naturally  rests  upon  the  complainant.  But  this  judg- 
ment is  only  an  intermediate  one,  the  oath  must  follow 
it,  that  is,  the  court  tries  to  make  sure  what  the  public 
opinion  really  is.  It  says  to  the  accused :  we  are  con- 
vinced of  your  innocence  to  this  extent  that  we  will 
allow  you  to  see  if  you  can  find  eleven  men  of  standing 
in  the  hundred  who  will  swear  that  they  believe  your 
oath  when  you  swear  that  you  are  not  guilty;  if  you 

8  See  P.  and  M.,  II.  600-603.  The  principle  of  the  award  of  the  oath  is 
well  stated  in  the  Usatici  Barchinone  Patrie,  c.  168.  (Last  half  of  the 
eleventh  century  probably.  In  Giraud,  Droit  Frangais,  II.  501);  Sacra- 
mentum  non  est  probatio,  sed  in  defectu  probationis  datur  reo  vel  actori, 
cui  judex  certiorem  esse  cognovit  et  quern  magis  juramentum  timere 
perspexerit,  timere  meaning  not  "to  be  afraid  to  take,"  but  "having 
more  respect  -for."  Compare  with  this  the  case  under  William  I.  in 
Bigelow,  Placita,  pp.  17-18.  See  Bracton's  N.  B.,  pi.  1115.  "It  seems 
clear  that  in  every  case  the  presumption  was  in  favor  of  the  party  to 
whom  the  vita  was  awarded,"  Professor  Edward  Jenks,  speaking  of  the 
Scandinavian  practice,  E.  H.  R.,  July,  1896,  p.  512.  The  formalism  in 
the  award  of  the  oath  is  but  little  more  than  in  the  modern  assumption 
that  the  burden  of  proof  rests  on  the  accuser  or  the  plaintiff,  and  the 
burden  of  proof  in  the  old  procedure  was  often  shifted  by  a  new  issue 
of  fact  raised  in  the  pleadings,  for  example,  see  Bracton's  IV.  B.,  pi. 
1549,  1574.  Ibid.,  pleas  531  and  1079  are  cases  where  the  medial  judg- 
ment assigning  proof  is  clearly  a  decision  of  the  case  for  the  defendant. 
In  the  case  in  the  bishop  of  Bath's  court  in  1121,  cited  above,  in  n.  16, 
chapter  II.,  the  award  of  proof,  by  witnesses,  to  the  plaintiff  is  in  form 
a  decision  of  the  case  in  his  favor,  but  it  calls  upon  him  to  make  a  proof 
which  it  was  probably  well  known  he  could  not  make. 

[118] 


THE  FIRST  AGE  OF  CHANGE 

can  then  we  shall  declare  you  innocent  by  the  final 
judgment  of  the  court.  Or  in  more  doubtful  cases 
the  court  modifies  the  judgment  and  says:  we  think 
it  likely  that  you  are  innocent  but  the  circumstances 
against  you  are  so  strong  that  instead  of  eleven  men 
you  must  find  seventeen,  or  twenty-three,  who  will 
swear  with  you,  or  you  must  find  so  or  so  many  from 
a  given  list  of  names  which  the  court  will  make  out; 
and  probably  many  men  would  vote  to  let  the  accused 
make  the  attempt  who,  when  brought  to  the  test, 
would  refuse  to  help  him  by  taking  the  individual  and 
specific  oath  as  an  oath  helper.  Obviously  this  is  a 
primitive  and  clumsy  way  of  getting  at  the  public 
opinion  of  the  community  as  to  the  guilt  of  the  ac- 
cused. It  is  the  first  stage  of  the  trial  only,  because 
even  when  declaring  itself  plainly  against  the  accused 
the  sense  of  the  community  may  be  wrong — therefore 
there  follows  the  ordeal,  in  theory  an  appeal  to  heaven 
not  to  allow  human  fallibility  to  work  injustice.9 

Now  the  relation  of  the  jury's  verdict  to  the  older 
trial  should  be  clear.  It  is  a  more  effective  and  less 
clumsy,  a  more  advanced  method  of  getting  at  the 
opinion  of  the  community  about  the  accused.  Easily 
and  with  no  sense  of  violent  innovation  it  takes  the 

9  It  is  sometimes  said  that  a  man  was  ordered,  or  compelled  to  go  to  the 
ordeal.  This  should  not  be  supposed  to  mean  that  he  had  no  option  in 
the  matter.  No  man  could  be  forced  to  submit  to  the  ordeal  who  was 
ready  to  accept  an  adverse  judgment  of  the  court,  but  the  ordeal  was 
the  only  means  of  defense  left  for  one  against  whom  the  compurgation 
process  had  gone  and  who  still  insisted  upon  his  innocence. 

[119] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

place  of  the  whole  compurgation  portion  of  the  old 
procedure,  though  it  must  have  been  clearly  seen  that 
it  was  new.  The  ordeal  portion  of  the  old  procedure 
remains  as  it  was,  and  for  the  same  reason  as  in  the 
popular  court. 

So  far  none  of  these  changes  could  have  seemed 
very  extreme  to  the  men  of  the  time.  But  there  is  in 
the  Assize  of  Clarendon  another  provision  of  a  more 
unusual  character;  it  must  have  seemed  almost  start- 
ling, one  would  think,  if  here  proposed  for  the  first 
time.  It  is  in  c.  5  and  it  provides  that  de  illis  qui  capti 
fuerint  per  prsedictum  sacramentum  hujus  Assisse, 
nullus  habeat  curiam  vel  justitiam  nee  catalla  nisi 
dominus  rex.  In  all  cases  of  persons  arrested  under 
this  Assize  the  feudal  baron  loses  his  jurisdiction,  he 
cannot  claim  his  right  to  try  the  case,  and  the  financial 
advantage  of  jurisdiction,  the  right  to  confiscate  the 
chattels  of  the  condemned  felon,  goes  to  the  king. 
With  this  provision  go  those  contained  in  clauses  8- 
11,  by  which  the  privileges  of  exemption  from  the 
ordinary  public  jurisdiction  enjoyed  by  the  baron's 
lands,  the  immunity,  called  in  England  the  "liberty," 
are  suspended — the  lands  must  be  represented  as 
other  lands  are  in  the  court  before  the  king's  justices, 
the  baron  must  permit  the  sheriff  to  enter  to  view  the 
frank  pledge,  or  to  arrest  the  persons  suspected  of 
crime  under  the  assize,  nor  can  the  baron  harbor  in 
his  lands  any  person  whom  he  is  not  ready  to  produce 
before  the  justices  on  their  requisition.  If  we  put 

[120] 


THE  FIRST  AGE  OF  CHANGE 

these  things  together,  the  result  is  this:  everything 
that  makes  the  independent  jurisdiction  of  the  feudal 
baron  of  value  in  these  cases  is  taken  away  from  him, 
the  income  which  he  derives  from  it,  his  power  to 
exclude  public  officers  from  his  lands  and  so  to  seem 
to  possess  some  degree  of  political  independence,  and 
his  power  to  protect  his  men  from  public  processes. 
Before  these  specially  commissioned  king's  justices, 
before  these  king's  courts  which  they  set  up  in  every 
county,  there  was  no  feudal  independence.  The  lands 
and  the  subjects  of  the  strongest  baron,  exempt  from 
all  ordinary  public  jurisdiction,  are  as  open  to  their 
supervision  as  the  lands  of  the  simple  knight,  or  the 
common  freeholder  in  the  royal  manor.10 

There  might  be  some  reasonable  excuse  for  a  pro- 
vision of  this  sort  in  the  fact  that  the  use  of  the  king's 
private  machinery,  his  commissioner  and  his  jury,  to 
maintain  local  order,  ought  to  be  paid  for,  and  could 

10  It  seems  to  me  doubtful  if  we  ought  to  say  with  Bigelow,  Procedure, 
p.  101,  note  3,  that  "some  of  the  franchises  held  out  against  the  entry 
of  the  sheriffs,"  so  far  as  this  legislation  is  concerned.  At  least  no  clear 
evidence  of  that  fact  has  yet  been  produced.  The  legislation  is  in  gen- 
eral terms,  all  inclusive,  and  without  any  indicated  qualification.  It 
should  be  so  interpreted  until  the  contrary  is  shown.  That  special 
exemptions  from  these  regulations  would  be  very  soon  granted,  and 
when  granted  would  be  strongly  insisted  upon,  is  practically  certain. 
There  are,  I  think,  before  very  long  no  regulations  concerning  the  new 
prerogative  justice  from  which  exemptions  were  not  granted  to  favored 
individuals,  and  corporations,  or  sold  by  the  king.  See  Richard's  charter 
for  Dunstable,  Cal.  Charter  Rolls,  I.  9 — an  inspeximus.  Every  such  con- 
firmation or  reissue  of  an  earlier  charter,  as  clearly  expressed  as  this, 
would  have  the  same  effect.  See  John's  charter  in  favor  of  William  de 
Braiose,  Madox,  Exch.,  I.  150.  t. 

[121] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

be  paid  for  most  naturally  by  the  chattels  of  the  con- 
demned.11 It  is  also  true  that  in  the  charter  of  Henry 
I.  in  regard  to  county  and  hundred  courts  it  is  implied 
that  in  his  county  courts,  before  his  justices,  the  privi- 
leges of  the  "liberties"  in  regard  to  attendance  were 
suspended,12  but  this  provision  goes  much  further  than 
the  mere  matter  of  attendance.  It  strikes  at  the  very 
foundation  of  the  feudal  state.  It  does  to  be  sure 
have  reference  to  one  particular  matter  only,  local 
criminal  justice,  but  in  that  matter  if  this  provision 
is  carried  out  to  its  logical  applications,  the  feudal 
state  is  at  an  end — the  modern  state  has  taken  its 
place.  Whether  this  result  was  understood  by  those 
whose  interests  were  affected,  whether  there  was  oppo- 
sition to  it,  whether  the  remedy  for  the  failure  of  local 
justice  was  thought  by  any  to  be  more  dangerous  than 
the  disease,  we  do  not  know.  Certainly  it  forms  a 
part  of  the  assize,  that  is,  of  a  legislative  enactment, 
and  therefore  it  was  adopted  by  consent.  Later  also, 
in  the  general  indictment  of  the  attitude  of  the  Ange- 
vin house  towards  feudalism,  it  was  not  mentioned. 
It  is,  however,  hard  to  believe  that  so  complete  an 
overthrow  of  feudalism  in  a  matter  so  essential  did 
not  have  something  to  do  with  the  final  judgment  of 
the  barons  which  led  to  the  Great  Charter. 

u  The  writer  of  the  Dialogus  de  Scaccario  does  not  seem  to  have  con- 
sidered this  the  reason  for  the  provision.     He  sees  that  it  is  open  to 
question  and  is  manifestly    at  a  loss  to  account  for  it.     See  II.  10,  ed. 
Hughes,  Crump  and  Johnson,  p.  139. 
12  See  Appendix,  II.  p.  350. 


THE  FIRST  AGE  OF  CHANGE 

We  are  now  able  to  say  of  the  Assize  of  Clarendon 
that  two  great  changes  are  either  first  enacted  or  are 
confirmed  by  it.  They  concern  a  single  matter  only, 
local  criminal  justice,  but  the  extension  of  both  to  a 
wider  range  of  interests  would  not  seem  to  be  difficult. 
By  one,  certain  parts  of  the  king's  prerogative  action, 
his  justices  and  his  jury,  down  to  this  date  no  part  of 
the  regular  public  machinery,  in  occasional  use  only 
for  the  king's  own  purposes,  were  fitted  into  the 
state's  judicial  machinery,  as  henceforth  constitutional 
parts  of  it,  as  much  so  as  the  older  courts,  were  given 
as  it  were  by  the  king  to  the  public,  as  the  best  way 
in  which  he  could  fulfill  his  high  duty  of  making 
order  and  justice  everywhere  prevail.  This  would 
be  in  itself,  if  it  were  the  only  thing,  a  serious  modifi- 
cation of  the  feudal  constitution  of  the  state,  but  the 
Assize  goes  further.  In  the  second  place  it  attacks 
one  essential  principle  of  feudalism — the  representa- 
tion of  the  state  by  the  baron  within  his  lands,  his 
political  rights  and  responsibilities  for  his  men,  and 
his  local  independence — and  in  this  one  particular 
destroys  it  completely.  Whatever  may  be  the  impor- 
tance of  the  Assize  of  Clarendon  in  the  development 
of  our  criminal  processes,  the  results  to  which  these 
two  changes  naturally  lead  in  the  general  constitution 
are  of  far  greater  importance.  This  is  equally  true 
whether  the  outcome  is  to  be  the  highly  centralized 
and  absolute  monarchy,  to  which  they  directly  point, 
or  by  way  of  reaction,  one  of  a  different  type. 

[123] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

So  far  these  changes  affect  one  point  of  the  consti- 
tution only,  and  that  as  compared  with  the  whole  con- 
stitution a  rather  narrow  point — the  enforcement  of 
criminal  justice  in  the  local  subdivisions  of  the  state. 
We  have  now  to  follow  their  application  in  a  wider 
field,  and  to  find  our  starting  point  we  must  go  back 
to  a  date  earlier  than  1166. 

The  Assize  of  Clarendon  is  the  first  of  the  surviv- 
ing legislative  acts  of  Henry  II.'s  reign,  but  it  is  not 
the  earliest  of  the  documents  which  have  come  down 
to  us,  embodying  the  reforms  which  he  was  striving 
to  carry  through.  The  Constitutions  of  Clarendon  is 
of  the  date  1164.13  It  purports  not  to  be  an  enact- 
ment, but  a  recognition,  that  is,  a  report  to  the  king 
of  the  findings  of  a  jury,  a  jury  of  what  sort  and  size 
we  do  not  know,  perhaps  a  great  jury  of  the  whole 
kingdom,  regarding  the  old  and  customary  rights  of 
the  king  and  kingdom  with  reference  to  the  church. 
Consequently  in  theory  its  purpose  is  to  state  old  law, 
not  to  make  new.  The  men  of  feudal  days,  however, 
did  not  hold  themselves  closely  to  definitions  and  dis- 
tinctions, even  when  they  knew  them  well  enough,  and 
c.  IX.  of  the  Constitutions  contains  one  provision 
which,  so  far  as  we  know,  is  new.  It  gives  to  every- 
body the  right  to  use  the  king's  jury,  before  a  king's" 

13  Text  in  the  original,  Stubbs,  8.  C.,  pp.  137-140;  in  translation,  Adams 
and  Stephens,  Select  Documents,  pp.  11-14;  also  in  Gee  and  Hardy, 
Documents  Illustrative  of  English  Church  History,  pp.  68-73,  and  in 
Penn.  Trawl.,  I.  26. 

[124] 


THE  FIRST  AGE  OF  CHANGE 

justice  of  course,14  in  one  civil  suit — a  suit  to  deter- 
mine whether  a  fief,  a  fee,  should  be  held  by  the 
church,  or  if  so  is  held  by  the  usual  feudal  services  or  a 
fee  in  alms,  that  is,  free  of  such  services.  Now  it  will 
be  noticed  that  c.  IX.  speaks  of  the  submission  of  this 
question  to  a  jury  as  if  that  were  nothing  new,  and 
we  know  also  that  in  special  cases  permission  to  have 
such  a  question  decided  by  a  jury  had  been  granted 
before  the  accession  of  Henry  II.15  We  know  also 
that  this  privilege  came  to  be  called  the  assize  utrum, 
as  if  the  right  to  use  a  jury  had  been  thrown  open  to 
the  public,  had  been  granted  to  anyone  who  would 
make  proper  application,  by  a  special  legislative  act, 
like  the  Assize  of  Clarendon.  This  was  very  likely 
the  case,  and  if  this  assize  was  of  a  date  earlier  than 
1164  as  the  language  would  seem  to  imply,  c.  IX.  is 
not  really  legislative  in  character;  it  states  what  had 
already  become  law.  But  such  an  assize  has  not  yet 
been  discovered,  and  so  far  as  our  evidence  goes  it  is 
c.  IX.  which  makes  this  use  of  the  jury  public. 
Whether  this  was  really  the  case  or  not,  here  is  at  any 
rate  evidence  that  in  one  sort  of  civil  suit  the  same 
thing  had  been  done  that  we  have  seen  done  in  crimi- 
nal cases  by  the  Assize  of  Clarendon — the  jury  had 
been  made  a  part  of  the  fixed  machinery  of  the  judi- 
cial system.  It  should  not  be  overlooked,  however, 

14  It  should  be  noticed  that  the  Constitutions  of  Clarendon  assume  the 
existence   and  thoroughly  understood  position   of  the  king's  justice  as 
clearly  as  the  Assize  of  Clarendon. 
is  P.  and  M.,  I.  145;  Haskins,  A.  H.  R.,  VIII.  633-635. 

[125] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

that  in  this  case,  after  the  question  of  fact  is  once 
determined  by  the  jury,  the  jurisdiction  of  the  feudal 
baron  is  carefully  preserved. 

Evidence  that  the  use  of  the  jury  is  allowed  to  all 
in  a  further  range  of  civil  cases  is  furnished  us  in  the 
so-called  Assize  of  Northampton  of  1176.16  In  c.  4 
of  this  Assize  it  is  provided  that,  when  the  lord  denies 
to  the  heir  of  his  deceased  vassal  possession  of  his  fief, 
the  king's  justices  may  ask  a  jury  to  determine  what 
sort  of  possession  of  the  fief  the  ancestor  had  as  a 
necessary  step  in  determining  whether  the  heir  should 
have  possession  or  not,  and  this  much  at  least  of  the 
question  of  inheritance  is  removed  from  the  jurisdic- 
tion of  the  baron's  court.  With  this  goes  c.  5  of  the 
same  Assize,  which  provides  that  in  case  of  any  recent 
disseisin  the  justices  may  direct  a  jury  to  declare  the 
facts  on  which  possession  should  be  based.  The 
clause  speaks  of  such  a  disseisin  as  made  super 
Assisam,  implying  the  opening  the  jury  in  such  cases 

16  It  is  not  easy  to  determine  the  exact  character  of  the  document  called 
the  Assize  of  Northampton.  Down  to  c.  5  it  seems  most  natural  to  call 
it  a  legislative  act,  from  that  point  on  it  seems  even  more  clearly  a  com- 
mission to  itinerant  justices.  The  absence  of  any  words  of  legislation, 
of  anything  corresponding  to  a  de  consilio  et  assensu  clause,  together 
with  the  fact  that  a  memorandum  as  to  legislation  just  adopted  might 
naturally  be  included  in  a  commission,  inclines  one  rather  to  the  belief 
that  this  document  was  not  intended  as  a  record  of  legislation,  that 
record  has  perished,  but  only  as  a  commission.  See  Qesta,  I.  107. 
The  very  informal  character  of  this  document,  if  we  may  be  sure  that 
we  have  the  whole  of  it,  shows  that  contemporaries  did  not  always  stop 
to  make  carefully  the  distinctions  which  they  certainly  understood. 
Original  in  Stubbs,  8.  C.,  pp.  150-153;  translation  in  Adams  and 
Stephens,  Select  Documents,  pp.  20-23. 

[126] 


THE  FIRST  AGE  OF  CHANGE 

by  an  earlier  act  of  legislation.  These  are  of  course 
two  of  the  three  "possessory  assizes,"  morte  d'ances- 
tor,  novel  disseisin,  and  darrein  presentment,  a  more 
full  account  of  which  is  given  us  in  the  book  on  the 
laws  of  England  attributed  to  Glanvill  and  written 
not  long  after  the  date  of  the  Assize  of  Northampton. 
With  them  should  go  the  grand  assize,  also  described 
in  Glanvill,  by  which  the  defendant  whose  possession 
is  attacked,  is  granted  a  jury  to  decide  not  the  mere 
question  of  temporary  possession,  but  where  the  real 
right  of  ownership  lies  and  so  the  final  right  of 
possession.17 

It  is  not  necessary  to  carry  this  account  further. 
If  these  five  "assizes,"  the  assize  utrum,  the  three 
possessory  assizes,  and  the  grand  assize,  be  taken 
together,  they  will  be  seen  to  be  applicable  to  a  large 
part  of  the  most  important  cases  which  could  arise 
as  to  the  holding  of  feudal  land.  The  questions  which 
they  are  intended  to  settle  arose  in  probably  more 
than  half  of  all  cases  of  litigation  respecting  land.18 
Now  with  regard  to  them  the  same  two  things  are  to 
be  noticed  as  regarding  the  provisions  of  the  Assize 
of  Clarendon  about  criminal  justice:  the  jury  is  made 
a  regular  part  of  the  constitutional  judicial  machin- 

17  Glanvill,  II.  7,  1  clearly  states  that  the  grand  assize  was  established  by 
an  act  of  legislation.     It  was  dementia  principis  de  consilio  procerum 
populis  indultum,  and  it  is  several  times  called  a  constitutio.     Compare 
Bracton's  statement,  f.  164  b,  that  the  assize  of  novel  disseisin  was  pro- 
vided de  beneficis  principis. 

18  See  Maitland,  Rolls  of  the  King's  Court,  Richard  I.  (Pipe  Roll  Soc.) 
Introd.;  Equity,  p.  329. 

[127] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

ery,  anyone  can  have  it  who  applies  for  it,  if  he  pays 
the  fees,  and  the  jurisdiction  of  the  baron's  court  is 
so  far  forth  destroyed.  Of  them  we  must  say,  how- 
ever, the  same  as  of  the  new  process  for  the  punish- 
ment of  crime.  We  do  not  know  of  any  opposition 
or  objection  to  these  measures.19  In  truth  when  we 
come  to  the  great  attempt  to  restore  the  balance 
between  royal  rights  and  feudal  rights,  in  Magna 
Carta,  with  an  inconsistency,  as  compared  with  other 

19  The  king's  concession  to  the  holders  of  liberties — so  frequently  made 
in  the  case  of  the  monasteries — that  the  royal  justice  shall  sit  in  the 
court  of  the  liberty  and  there  perform  his  function  as  itinerant  justice, 
holding  the  assizes  among  other  things,  may  indicate  indirectly  such 
opposition,  but  not  exactly  to  the  point  here  chiefly  in  mind..  What  is 
safeguarded  by  such  concessions  is  so  plainly  the  financial  interest  of 
the  lord  of  the  liberty  in  the  cases  tried,  and  there  seems  to  fe  so  little 
care  for  judicial  or  political  independence,  that  other  evidence  on  the 
point  is  necessary  before  the  statement  of  the  text  should  be  seriously 
modified.  Cf.  Brunner,  Schv^^ifgerichte,  p.  301,  citing  a  charter  of  John 
for  the  church  of  Beverley  which  says  that  the  liberties  granted  the 
church  in  nullo  depereant,  vel  minuantur  vel  laedantur  per  assisas  vel 
recognitiones  vel  constitutiones  postea  facias,  but  that  recognitions  and 
assizes  are  to  be  held  in  the  court  of  the  provost  of  Beverley.  From 
Houard,  Anc.  Loix,  II.  287.  That  is,  if  they  are  held  in  the  court  of 
the  baron  by  a  king's  justice  the  liberty  is  not  diminished.  The  state- 
ment on  this  point  in  Bigelow,  Procedure,  p.  78,  seems  to  me  too  strongly 
worded.  While  we  do  not  know  positively  that  such  reason  was  alleged 
(cf.  Ralph  de  Diceto,  I.  371),  there  certainly  could  have  been  found,  as 
far  as  England  was  concerned,  abundant  excuse  for  the  baronial  insur- 
rection of  1173-74,  which  was  so  general  throughout  his  dominions,  in 
Henry's  many  infringements  of  feudal  right.  The  king's  demand  that 
knights  of  new  enfeoffment  should  be  reckoned  in  a  baron's  liability  for 
scutage  (1166,  Stubbs,  8.  C.,  p.  146)  was,  I  think,  quite  without  warrant 
in  law.  On  the  similar  "augmentum"  in  the  Norman  Kingdom  of  Sicily, 
going  back  to  the  time  of  Roger  I.,  see  Raskins  in  E.  H.  R.,  XXVI. 
662-664.  The  interesting  suggestion  is  there  made  that  Henry  II.  may 
have  been  influenced  by  a  knowledge  of  the  Sicilian  precedent  in  his 
inquiries  of  1166. 

[128] 


THE  FIRST  AGE  OF  CHANGE 

parts  of  the  Charter,  complete  but  unconscious,  the 
barons  allowed  the  continuance  and  demanded  the 
regulation  of  the  three  possessory  assizes.  The  great 
practical  superiority  of  the  royal  procedure,  the  in- 
fluence upon  the  final  decision  which  it  allowed  to  the 
actual  facts  of  the  case,  adequately  proved,  instead  of 
an  appeal  to  the  wager  of  battle,  outweighed  the  loss 
of  their  private  jurisdiction,  or  perhaps  concealed  it 
from  their  sight. 

To  get  a  full  estimate  of  the  extent  to  which  this 
new  system  of  royal  justice  was  drawing  out  of  pri- 
vate courts  all  cases  of  importance,  and  beginning  to 
form  a  great  body  of  centralized  law,  we  should  add 
to  the  assizes  and  criminal  justice,  the  writ  of  right 
and  the  writ  Praacipe  already  described,  both  very 
much  developed  under  Henry  II.  and  made  as  regular 
and  constitutional  as  the  assizes,  if  we  may  judge  by 
the  account  of  them  in  Glanvill.  By  these  two  writs 
practically  any  case  whatever  concerning  feudal 
rights,  and  some  others  also,  might  be  removed  from 
the  baron's  court  to  the  king's.  It  must  be  added 
also  that  all  these  cases  go  before  special  commis- 
sioners, king's  justices,  and  always  the  king's  per- 
mission must  be  obtained  in  advance.  It  is  the  writ 
which  plaintiff  or  defendant  obtains  which  transfers 
the  case  into  the  king's  court  and  serves  to  the  justice 
at  once  as  evidence  that  the  king's  permission  has 
been  granted  and  as  his  authorization  to  go  on  with 
the  case. 

[129] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

To  this  point  we  have  considered  these  changes 
under  two  aspects  only — their  enlargement  of  the  con- 
stitutional machinery  of  the  state  on  its  judicial  side 
and  their  effect  on  feudal  independence.  Another 
aspect  of  them  must  now  be  taken  into  account — an 
aspect  of  equal  influence  with  reference  to  our  final 
estimate  of  this  age  of  constitutional  advance.  The 
court  of  the  justice  before  whom  these  cases  were 
brought  by  these  writs  and  assizes  was  the  king's 
court.  It  was  curia  regis.  It  is  so  called  in  c.  5  of  the 
Assize  of  Clarendon,  and  it  calls  itself  curia  regis  in 
official  documents  which  it  issued.20  Probably  in  this 
first  age  of  the  history  of  these  institutions  the  words 
meant,  to  the  justices  and  to  all  who  had  to  do  with 
the  court,  not  a  curia  regis,  not  one  species  of  a  genus, 
but  the  curia  regis,  that  is,  the  only  existing  court  of 
the  king  in  one  of  its  phases.21  The  idea  of  differen- 

20  In  the  fine — the  finalis  concordia — made  in  the  itinerant  justice  courts, 
or  in  the  permanent  central  court  corresponding  to  them,  as  in  the  fol- 
lowing of  1192  from  the  Ramsey  Cartulary,  I.  166:  Haec  est  finalis  con- 
cordia facta  in  curia  domini  regis  apud  Huntedone,  in  octavis  Assump- 
tionis  Beatae  Mariae,  anno  regni  Ricardi  tertio,  coram  Ganfrido  filio  Petri, 
et    Osberto   filio    Hervei,   et   Willelmo    Ruffo,    et    Michaele    Belethe,    et 
Willelmo  filio   Ricardi,   et   Simone   Pateshille,  justiciariis   domini   regis, 
et   allis   fidelibus   domini   regis   ibi   tune   prsesentibus.     Other   instances 
vary  but  little  from  this  form.    See  Round  in  E.  H.  R.,  XII.  293;  Glan- 
vill,   VIII.   3;    Yorkshire   Fines,  Surtees   Soc.,   vol.   94,   p.   vii.;   British 
Museum  Charters,  vol.  I.,  No.  55;  Round,  Feudal  England,  pp.  509-518. 
These   words,   which   are   an   early   stage   of  what   becomes   a   formula, 
indicate  that  the  king's  justices  are  reckoned  among  the  barones  and 
fdeles  who  form  the  court  and  that  the  court  is  an  assembly  court. 
On  the  justices  as  the  barons'  peers,  see  in  note  on  Magna  Carta,  c.  39, 
at  the  end  of  chapter  V.  (p.  262). 

21  See  P.  and  M.,  I.  153. 

[130] 


THE  FIRST  AGE  OF  CHANGE 

tiation  into  distinct  institutions  was  not  yet  possible. 
The  justices — always  more  than  one — who  went 
down  into  the  county  to  hold  court  were  members 
of  the  great,  the  central  curia  regis.  It  was  in  this 
capacity  that  they  acted  as  justices  and  in  this  capac- 
ity they  probably  had  from  the  beginning  a  larger 
voice  in  making  the  judgment  of  the  court  than  the 
presiding  officer  of  the  ordinary  assembly  court  of 
the  feudal  age.  The  court  through  which  they  acted 
was  an  assembly  court.  They  undoubtedly  presided 
over  it,  but  they  were  themselves  as  much  members  of 
it,  as  were  the  barons  or  the  barons'  representatives, 
who  attended  with  them.22  In  this  capacity  also  they 
were  competent  to  perform  any  function  of  the  cen- 
tral curia  which  it  might  be  desirable  to  have  per- 
formed in  the  counties  to  which  they  were  going. 

We  have  now  the  third  aspect  in  which  this  new 
judicial  machinery  should  be  regarded.    By  it  the  one 

22  There  is  of  course  difficulty  in  understanding  j  ust  how  the  presiding 
officer  of  the  feudal  or  popular  court,  who  is  only  a  moderator  and  has 
only  the  Rechtsgebot,  passes  over  into  the  modern  judge  with  his  modern 
function  in  the  making  of  the  judgment  of  the  court.  The  explanation 
is  very  possibly  to  be  found  in  the  double  position  of  the  king's  specially 
commissioned  justice  in  these  new  courts,  in  that  he  was  at  the  same 
time  moderator  as  in  the  earlier  courts,  and  also  a  member,  of  the  court 
and  an  active  participant  in  its  functions.  The  special  justices  of  the 
permanent  Westminster  court— common  pleas — would  naturally  stand 
in  the  same  double  relation  to  their  court,  and  from  them  the  practice 
may  have  passed  to  the  other  common  law  courts,  and  have  been  made 
easy  by  the  rise  in  these  courts  of  a  group  of  men,  apparently  from 
the  last  years  Of  Henry  II.,  who  devoted  themselves  almost  profes- 
sionally to  the  administration  of  the  law,  and  in  its  turn  this  made  easy 
the  development  of  the  professional  justice.  I  offer  this  only  as  a  sug- 
gestion, but  it  seems  something  more  than  possible. 

[131] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

all-controlling  and  supervising  institution  of  the  cen- 
tral government,  by  which  all  officers  were  held  re- 
sponsible and  unity  of  government  was  maintained 
throughout  the  land,  was  carried  down  into  every 
local  division  of  the  state  to  exercise  this  supervising 
and  unifying  power  on  the  spot.  The  advantage  and 
the  results  are  obvious  and  they  were  doubtless  clearly 
seen  by  those  to  whom  the  institution  is  due.23  It  is 
altogether  possible  that  Henry  and  his  councillors 
thought  of  the  results  obtained  in  efficiency  of  govern- 
ment, in  practical  centralization,  and  in  an  improved 
means  of  repressing  crime,  as  of  greater  importance 
than  in  the  furnishing  to  the  freeholder  of  a  better 
method  of  proving  his  rights. 

If  we  regard  the  Assize  of  Northampton  as  a  com- 
mission to  itinerant  justices,  as  we  very  well  may, 
giving  them  instructions  as  to  their  duties  on  the  cir- 
cuit, and  if  we  examine  with  it  the  commission  to 
similar  justices  issued  under  Richard  I.  in  1194,24  we 
can  see  how  fully  this  function  of  the  justices  was 
exercised  and  what  proportion  it  assumes  in  their 
instructions.  Every  interest  of  the  king  in  the  county 
is  to  be  looked  after,  and  many  of  the  functions  of  the 
sheriff  may  be  for  the  time  transferred  to  them.  Their 
duties  of  this  kind  imply  always  that  misconduct  on 
the  part  of  the  sheriff  can  hardly  escape  their  knowl- 

23 On  the  objects  sought  in  the  establishment  of  the  system  see  Ralph  de 
Diceto,  I.  434. 

2*Stubbs,  S.  C.,  pp.  258-263;  Adams  and  Stephens,  Select  Documents, 
pp.  29-33. 

[132] 


THE  FIRST  AGE  OF  CHANGE 

edge,  and  not  infrequently,  as  in  1170,  they  are  espe- 
cially commissioned  to  investigate  his  administration 
of  office,  and  find  out  what  truth  there  is  in  complaints 
against  him  which  have  reached  the  king.25  If  we  put 
together  the  Assize  of  Northampton  and  the  com- 
mission of  1194,  the  list  which  we  can  make  of  the 
administrative  and  executive  duties  which  they  were 
to  perform  is  a  fairly  representative  one.  They  are 
to  receive  oaths  of  allegiance  to  the  king;  to  find  out 
and  look  after  cases  of  confiscation  of  property,  of 
escheats,  wardships,  and  marriages,  of  presentations 
to  churches  belonging  to  the  king,  and  of  the  chattels 
of  deceased  crusaders,  and  chattels,  lands  and  debts 
of  Jews;  they  are  to  see  to  the  destruction  of  un- 
authorized castles  and  to  the  custody  of  those  belong- 
ing to  the  king;  to  look  into  violations  of  the  assize 
of  wine  and  the  use  of  false  measures  generally,  to 
see  to  the  election  of  coroners,  to  lay  a  tallage  and  to 
inquire  into  the  receipts  and  arrearages  of  the  aids 
recently  taken  for  king's  redemption,  and  into 
the  revenues  and  stocking  of  royal  demesne  manors 
and  of  escheats  and  wardships  in  the  king's  hands. 
Other  duties  assigned  to  justices  might  be  added 
from  other  documents  of  the  century,  and  similar 
instructions  continue  to  be  repeated  in  their  commis- 
sions throughout  the  thirteenth  century,  but  it  is  suffi- 
ciently clear  both  that  the  office  is  a  flexible  one  easily 

25  See  a  writ  of  13  Edward  I.  in  the  Chronicon  Petroburgense  (Camden 
Soc.),  pp.  103-104. 

[133] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

adapted  to  any  desired  purpose  and  that  the  range 
of  local  supervision  is  very  wide.26 

For  our  purpose  these  new  processes  taken 
together  mean  a  tremendous  engine  of  centraliza- 
tion— an  enormous  relative  increase  of  the  practical 
efficiency  of  the  royal  government — an  increase 
obtained  wholly  at  the  expense  of  feudalism  by  trans- 
forming older  special  prerogative  processes  of  the 
king's  into  regular  constitutional  machinery  and  with- 
out changing  their  royal,  non-popular,  and  non- feudal 
character.  The  absolutism  of  the  early  Xorman 
kings  is  now  intrenched  in  the  machinery  of  the  con- 
stitution. It  is  no  longer  a  mere  absolutism  of  force, 
founded  upon  the  lack  of  any  constitutional  means 
of  limitation  and  backed  by  occasional  and  irregular 
institutional  action.  It  has  begun  to  be  a  constitu- 
tional absolutism.  It  has  entered  upon  the  road 

26  For  capitula  of  inquiries  to  be  made  by  the  justices  at  the  middle  of 
the  thirteenth  century  see  Ann.  Burton,  pp.  330,  337;  Cart.  Glouc.,  II. 
276.  For  the  variety  of  commissions  and  distinctions  between  them,  and 
for  changes  in  form  during  the  century,  see  P.  and  M.,  I.  179-181 ;  Hall, 
Formula  Book  of  Legal  Records,  p.  192;  McKechnie,  p.  329.  Special 
commissioners  continue  to  be  appointed  in  the  thirteenth  century  to 
make  particular  inquiries,  to  hold  a  court  in  a  given  place,  to  look  into 
a  single  case,  etc.  See  Cal.  Pat.  Rolls,  1247-1258,  pp.  155,  156,  159,  160, 
161,  and  many  other  instances.  Cf.  ibid.,  pp.  519,  525,  commissioners  to 
correct  an  error  in  a  plea  before  the  justices  last  in  eyre  in  the  county 
of  Gloucester.  See  also  the  case  of  the  sheriff  too  strong  to  be  dealt 
with  by  the  itinerant  justices  who  is  punished  by  special  commissioners, 
M.  Par.,  V.  580;  Cal.  Pat.  Rolls,  27  Jan.  1257,  pp.  539  and  551.  Matthew 
Paris  seems  not  to  have  risen  above  the  idea  that  the  chief  purpose  of 
the  itinerant  justices  was  to  extort  money  for  the  king's  use,  and  if  his 
account  is  to  be  accepted  others  of  his  time  had  not.  IV.  34,  186,  V.  327, 
458. 

[134] 


THE  FIRST  AGE  OF  CHANGE 

which  will  lead  to  an  absolutism  of  an  ideally  perfect 
type  when  the  remaining  rights  and  privileges  of  the 
feudal  baron  have  gone  the  way  of  his  judicial  rights. 
His  rights  which  remain  are  large,  however — his 
rights  of  consent,  his  various  property  rights  and 
exemptions,  and  his  right  as  an  equal  party  to  the 
fundamental  feudal  contract,  and  the  work  of  erect- 
ing a  constitutional  absolutism,  ideally  complete,  is 
only  begun.  It  has  never  yet  had  a  full  reckoning 
with  the  fundamental  principles  of  feudalism,  and  it 
may  never  be  completed  if  the  baronage  is  by  any 
means  brought  to  understand  the  result  to  which 
things  are  tending. 

The  development  is  enough,  however,  already  to 
create  by  far  the  strongest  central  government  in 
Christendom.  It  is  enough  to  explain  why  a  king 
like  Richard  I.  could  neglect  utterly  all  duties  as 
king,  at  the  height  of  the  feudal  age  in  Europe,  with 
no  result  of  anarchy  in  the  kingdom,  and  why  such 
enormous  sums  could  be  raised  for  his  ransom  and 
for  his  continental  wars  with  so  little  evidence  of 
opposition  or  of  difficulty.  It  explains  also  why 
John's  iron  rule,  against  the  conscience  of  the  church 
and  the  interests  of  the  baronage,  was  so  long 
endured. 


[135] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

NOTE  A.     THE  ORIGIN  OF  THE  COURT  OF  COMMON  PLEAS 
(Page  111.} 

IT  hardly  falls  within  the  purpose  of  the  text  to  discuss  the 
origin  of  the  three  common  law  courts — and  yet  the  discussion 
would  be  closely  related  to  the  subject  of  this  chapter — the 
origin  and  organization  of  the  new  machinery  of  prerogative 
and  centralization.  The  origin  of  the  common  law  courts  is  a 
subject  on  which  at  present  conjecture  only  is  possible,  nor  does 
it  seem  likely  that  evidence  will  ever  be  found  to  give  any  real 
certainty  to  our  conclusions.  Still  I  think  we  must  say  that  in 
all  probability  the  court  which  became  after  a  time  known  as  the 
Common  Pleas  Court  was  different  in  its  origin  and  stood  from 
the  beginning  in  a  different  relation  to  the  permanent  small  curia 
regis  from  the  other  two  courts.  The  account  given  in  the  Gesta, 
I.  207,  of  its  founding  is  as  follows:  Itaque  dominus  rex  moram 
faciens  in  Anglia  quaesivit  de  justitiis  quos  in  Anglia  constituerat, 
si  bene  et  modeste  tractaverunt  homines  regni;  et  cum  didicisset 
quod  terra  et  homines  terrae  nimis  gravati  essent  ex  tanta  justi- 
tiarum  multitudine,  quia  octodecim  erant  numero;  per  consilium 
sapientium  regni  sui  quinque  tantum  elegit,  duos  scilicet  clericos 
et  tres  laicos:  et  erant  omnes  privata  familia  sua.  Et  statuit 
quod  illi  quinque  audirent  omnes  clamores  regni,  et  rectum  face- 
rent;  et  quod  a  curia  regis  non  recederent,  sed  ibi  ad  audiendum 
clamores  hominum  remanerent;  ita  ut  si  aliqua  quaestio  inter  eos 
veniret,  quae  per  eos  ad  finem  duci  non  posset,  auditui  regio 
praesentaretur,  et  sicut  ei  et  sapientioribus  regni  placeret  termi- 
naretur.  This  account,  I  think,  we  can  trust  for  the  general  fact 
and  for  such  details  as  are  given.  The  author  of  the  Gesta, 
whoever  he  was,  had  a  knowledge  of  institutional  matters  unusual 
in  a  chronicler,  and  his  technical  language  is,  I  think,  every- 
where accurate.  If  we  deal  with  this  narrative  as  we  should 
with  a  documentary  record,  we  shall  get  the  following  results: 
The  court  was  instituted  by  a  deliberate  legislative  act  and  its 
creation  stood  in  close  connection  with  the  itinerant  justice  system 

[136] 


THE  FIRST  AGE  OF  CHANGE 

as  that  had  been  organized  two  years  before  (Gesta,  I.  107). 
Difficulties  had  arisen  in  the  operation  of  that  system;  these  had 
been  considered  by  the  great  council,  and  the  new  arrangement 
devised  to  overcome  some  of  them  at  least.  The  justices  of  the 
new  court  were  a  special  appointment,  two  clerks  and  three  lay- 
men, all  of  the  king's  household.  They  were  to  hear  omnes 
clamor es  regni,  that  is,  suits  between  parties,  common  pleas, 
arising  anywhere  in  the  kingdom.  Nothing  is  said  of  any  con- 
nection of  these  men  with  the  curia  regis,  large  or  small,  nor 
for  a  court  so  established  would  such  a  connection  be  necessary, 
though  it  would  be  probable.  There  is  nothing  to  imply  any 
intention  to  employ  this  court  in  king's  pleas,  but  it  would  not 
be  likely  that  a  distinction  in  jurisdiction  of  this  kind  would  be 
strictly  maintained  at  so  early  a  date,  before  men's  minds  had 
begun  to  be  conscious  of  the  institutional  transformation  which 
was  going  on.  Such  a  distinction  was  very  likely  intended  at 
first,  however,  because  the  difficulties  which  the  people  would 
wish  to  have  lessened  and  which  are  spoken  of  as  created  by  the 
circuits  of  the  itinerant  justices  would  in  all  probability  concern 
their  administrative  business  and  the  king's  pleas,  not  their  trial 
of  common  pleas,  while  this  last  would  be,  as  indicated  by  the 
formation  of  the  new  court,  what  the  community  would  desire 
to  have  continued  and  made  more  convenient.  The  jurisdiction 
of  the  new  court,  like  that  of  all  courts  of  the  time,  was  final, 
but  undecided  questions  of  difficulty  could  be  referred  to  the 
king  and  the  sapientiores,  that  is,  the  council. 

It  seems  beyond  question  that  this  court  at  its  foundation  was 
not  regarded  as  itself  the  council,  great  or  small.  It  was  not 
the  curia  regis  in  the  old  sense,  and  in  this  more  limited  scope 
it  differed  from  the  itinerant  justice  court,  though  otherwise  of 
the  same  type.  It  was  a  curia  regis,  but  in  the  new  sense — a 
court  of  special  commissioners,  a  court  growing  out  of  the  possi- 
bilities of  the  king's  prerogative,  exactly  like  the  itinerant  jus- 
tices', except  that  it  was  a  single  central  court  for  the  whole 
kingdom.  Like  their  court  it  would  use  from  the  beginning  the 
new  writ  and  jury  processes  which  did  not  belong  to  the  pro- 

[137] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

cedure  of  the  old  curia  regis,  and  it  would  be  limited  in  scope  by 
the  terms  of  the  commission.  If  this  is  true,  it  follows  that  the 
permanent  court  for  common  pleas  was  not,  as  the  later  common 
law  courts,  King's  Bench  and  Exchequer,  seem  most  probably  to 
have  been,  the  small  curia  regis  acting  in  a  certain  kind  of  busi- 
ness, and  then  as  this  business  increased  holding  perhaps  at  first 
separate  sessions  to  consider  it,  and  so  by  imperceptible  degrees 
becoming  distinct  bodies,  though  long  showing  many  signs  of  the 
source  from  which  they  came.  It  was  consciously  a  new  creation ; 
not  an  old  body  assigned  to,  or  taking  up  a  new  use.  It  was 
treated  afterwards  as  if  it  had  the  same  origin  as  the  other 
common  law  courts,  but  it  actually  began  as  a  national  and  central 
itinerant  justice  court,  which  was  always  to  be  had  when  there 
was  business  for  it,  which  did  not  itinerate,  except  as  the  king's 
court  moved  from  place  to  place,  and  which  concerned  itself  only 
with  suits  in  which  the  king  had  no  direct  interest.  See  Maitland, 
Select  Pleas  of  the  Crown,  pp.  xi.-xix. ;  P.  and  M.,  I.  154,  169; 
Pike,  Hist,  of  the  House  of  Lords,  pp.  31-41 ;  McKechnie,  pp. 
311-315;  Liebermann,  Leges  Anglorum,  p.  63;  Gesetse,  I.  657,  q; 
Round,  Feudal  England,  p.  576,  and  elsewhere. 

If  this  explanation  is  correct,  it  would  follow  on  one  side  that 
in  establishing  this  court  there  was  no  intention  of  doing  away 
with  the  itinerant  justice  system,  but  only  to  render  it  less 
burdensome  and  more  convenient.  This  fact  is  clear  also  from 
the  chronicle,  for  we  are  told  (Gesta,  I.  238-239)  that  within 
less  than  a  year  England  was  divided  anew  into  four  circuits  to 
which  justices  were  sent,  those  going  to  the  northern  circuit 
being  clearly  distinguished  in  the  account  as  the  justices,  now 
six  in  number,  of  the  permanent  court.  The  temporary  suspen- 
sion of  the  permanent  court  by  the  appointment  of  these  justices 
to  a  circuit  would  seem  to  make  necessary  an  arrangement  of  the 
business  coming  before  these  courts  not  unlike  the  later  nisi 
prius  custom.  In  this  connection  should  be  noticed  the  conclud- 
ing words  of  c.  2  of  the  itinerant  justice  commission  of  1194 
(Stubbs,  S.  C.,  p.  259),  vel  a  capitale  curia  regis  coram  eis  missa, 
the  whole  capitulum  referring  specifically  to  the  cases  belonging 

[138] 


THE  FIRST  AGE  OF  CHANGE 

to  the  courts  of  this  type.  See  Maitland,  Year  Books,  Edward 
II.  (Selden  Soc.},  IV.  xxvi.;  McKechnie,  p.  330.  On  the  other 
side  the  establishment  of  this  new  central  court  would  interfere 
as  little  with  the  judicial  function,  or  with  the  jurisdiction,  of 
the  later  King's  Bench.  This  fact  appears  to  be  clearly  shown 
by  the  regi  et  sapientioribus  of  the  Gesia,  p.  208,  to  whom  difficult 
questions  were  to  be  referred,  and  the  old  court  would  be  more 
nearly  coram  rege  than  the  new  one,  though  it  is  evident  that 
we  can  expect  no  strictness  of  definition  for  this  term  until  the 
process  of  differentiation  begins  to  be  more  consciously  noticed. 
Nor  is  it  likely  that  any  distinction  which  could  then  be  made 
would  imply  that  the  king  was  not  considered  to  be  present  in 
some  sense  in  the  new  court.  This  relationship  of  the  two  courts 
to  one  another  would  also  be  implied  by  the  apparent  absence 
from  the  membership  of  the  new  court,  as  indicated  in  the  two 
passages  in  the  Gesta,  of  any  of  those  persons  of  high  eccle- 
siastical or  lay  rank  whom  we  should  expect  to  find  in  the  small 
curia.  This  characteristic  is,  however,  not  to  be  found  in  the 
groups  of  justices  who  are  assigned  to  the  circuits  and  it  is  not 
likely  that  it  would  be  a  permanent  difference.  It  would  probably 
affect  only  the  earlier  years  of  the  new  court's  existence.  Still  I 
think  care  should  be  taken  to  distinguish  in  the  records  which 
have  come  down  to  us,  so  far  as  it  is  possible  to  do  so,  between 
these  two  central  courts,  the  small  curia  regis  and  the  new  prerog- 
ative court,  which  might  often  be  in  session  at  the  same  moment, 
each  doing  business  in  its  own  way,  at  any  time  after  the  creation 
of  the  new  court.  Manifestly  powers  and  functions  belonging  to 
the  first,  were  quite  beyond  the  competence  of  the  second.  See 
Maitland,  Three  Rolls  of  the  King's  Court  (Pipe  Roll  Society}, 
XIV.  xxv.-xxvii. 

If  this  explanation  is  correct,  it  follows  also  that  we  need  not 
ask  of  "Glanvill's  capitalis  curia  domini  Regis  how  it  becomes 
two  courts,  the  King's  Bench  and  the  Common  Bench  or  Court 
of  Common  Pleas"  (Maitland,  Select  Pleas,  p.  xii.).  It  would 
not  be  necessary  to  suppose  that  such  a  separation  took  place, 
for  it  would  exist  from  the  beginning,  the  Common  Bench  being 

[139] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

the  central  court  created  de  novo  in  1178  and  the  King's  Bench 
being  included  in  the  one  jurisdiction  of  the  small  curia  regis,  the 
later  council,  undisturbed  by  the  new  creation,  but  to  be  set  off 
by  itself  from  the  council  in  a  somewhat  later  stage  of  differ- 
entiation. In  this  case  the  particular  facts  cited  by  Maitland, 
Select  Pleas,  pp.  xiv.-xix.,  find  a  most  ready  and  natural  expla- 
nation, but  we  should  expect  parallel  instances  to  occur  at  any 
time  after  1178  if  our  records  were  as  full  for  Henry  II.  and 
Richard  as  they  are  for  John. 

As  to  the  peculiar  prerogative  processes,  for  whose  general  use 
and  convenient  application  the  new  courts  seem  to  have  been 
devised,  it  would  seem  that,  as  belonging  specially  to  the  king, 
the  employment  of  them  by  any  king's  court  ought  not  to  have 
been  difficult,  at  least  after  they  became  thoroughly  established 
as  a  matter  of  common  use  and  habit,  which  would  certainly  be 
not  long  after  the  death  of  John.  It  is  perhaps  incautious  to 
conclude  that  they  were  not  so  employed  from  the  beginning  in 
view  of  the  scanty  evidence  which  has  come  down  to  us.  It  is 
true,  however,  that  the  large  curia  regis  never  adopted  them,  nor 
did  the  small  curia  regis  acting  as  council,  whether  in  its  trans- 
formed jurisdiction  as  equity  courts,  or  star  chamber,  or  in  its 
retained  jurisdiction  as  council.  The  small  curia  regis  as  council, 
regarded  from  the  side  of  its  judicial  function,  retains  more  of 
the  character  of  the  large  curia,  than  it  does  when  acting  through 
the  common  law  courts  which  are  derived  from  it,  just  as  in  its 
general  function  as  council  it  retains  more  truly  the  miscellaneous 
composition  of  the  old  curia  regis  than  does  the  House  of  Lords 
when  it  becomes  fixed  in  form  as  a  part  of  the  later  Parliament. 
That  these  new  processes  are  exclusively  prerogative  processes 
and  do  not  belong  to  the  curia  regis  may,  perhaps,  account  for 
the  fact  that  tenants-in-chief  are  required  to  pay  liberally  for 
their  use.  They  would  gain  no  right  to  them  from  their  member- 
ship in  the  curia  regis.  With  the  increasing  abundance  of  judi- 
cial records  after  1216,  we  ought  to  be  able  to  detect  more  clearly 
than  has  yet  been  done,  the  transformation  by  which  the  two 
courts  especially  representing  the  earlier  small  curia  regis,  King's 

[140] 


THE  FIRST  AGE  OF  CHANGE 

Bench  and  Exchequer,  became  common  law  courts.  Theoretically 
the  process  must  have  been  largely  one  of  usurpation,  cutting 
into  the  field  of  the  Court  of  Common  Pleas.  It  must  be  studied 
largely  as  a  question  of  procedure,  the  adoption  by  these  courts 
of  the  new  procedure,  the  procedure  of  the  Common  Pleas,  and 
by  that  means  drawing  into  themselves  cases  that  should  belong 
to  the  new  court.  Nor  should  the  influence  of  the  new  court  upon 
the  origin  of  the  King's  Bench  be  overlooked,  because  the  refer- 
ence of  difficult  cases  to  the  council  emphasized  strongly  the 
coram  rege  feature  which  was  apparently  fully  shared  by  the 
King's  Bench  in  its  early  stages  with  the  council  proper.  The 
influence  of  the  new  court  and  the  new  procedure  was  indeed 
most  profound  upon  our  whole  judicial  system. 

The  history  of  the  differentiation  of  the  small  curia  regis  in 
the  thirteenth  century  is  a  puzzling  one.  The  chroniclers  and 
occasional  references  in  the  records  show  us  that  the  men  of  the 
time  were  beginning  to  make  a  distinction  in  their  minds  between 
different  bodies  which  at  another  time,  in  circumstances  when 
we  should  expect  them  to  do  so,  they  do  not  seem  to  make  at  all. 
This  distinguishing  seems  to  be  mainly  for  purposes  of  descrip- 
tion and  does  not  arise  from  any  clear  perception  of  differences 
in  institutional  operation.  Vaguely  the  different  bodies  into 
which  the  small  curia  regis  was  separating  were  coming  to  have 
different  institutional  spheres.  Soon  these  will  be  understood 
and  the  different  provinces  well  marked  off  and  distinguished. 
But  institutional  distinctions  were  never  so  sharply  made  in  this 
process  during  the  thirteenth  century  as  to  prevent  what  seems 
to  us  confusion  of  composition  and  of  function.  We  get  into 
difficulties  at  once,  I  think,  we  try  to  do  more  than  the  thirteenth 
century  could  have  done,  if  we  attempt  to  straighten  out  the 
tangles  made  by  this  apparent  confusion  by  deciding  what  one 
of  the  later  distinct  bodies  is  the  principle  one  acting  and  what 
has  been  united  with  it  or  added  to  it  in  any  given  case.  The 
perplexities  disappear  when  we  come  to  perceive  clearly  that 
what  is  going  on  is  the  wholly  unconscious  differentiation  of  a 
body  having  originally  very  complex  functions  into  distinct  bodies 

[141] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

functionally  distinguished.  But  while  this  process  was  going 
on  nobody  saw  any  great  difference  between  the  bodies  which 
were  acting  contemporaneously.  They  were  separated,  when 
they  were,  for  convenience,  and  they  were  continually  reuniting 
and  separating  and  acting  for  each  other  and  with  each  other 
with  no  sense  of  anything  strange  or  institutionally  questionable, 
as  indeed  there  was  not.  Why  not  mix  their  records  on  the  same 
roll?  Why  not  use  a  parliamentary  session  of  the  council  for 
judicial  purposes?  (P.  and  M.,  I.  200.)  What  would  seem 
strange  to  the  men  of  the  thirteenth  century,  or  of  1305,  is  that 
any  question  should  ever  arise  about  such  combinations.  Prob- 
ably it  would  have  been  impossible  to  explain  the  phrase  "parlia- 
mentary session  of  the  council"  to  a  member  of  that  body  in  1305 
so  that  he  could  be  made  to  understand  it  as  we  do.  To  him  it 
was  a  matter  of  course  that  the  council  should  legislate  and  judge. 
These  were  as  much  its  normal  functions  as  any  other.  The 
other  thing  we  find  it  hard  to  hold  to  firmly  is  that  while  the 
small  curia  regis  throws  off  different  bodies  having  different 
functions,  it  remains  what  it  was  with  all  its  original  variety  of 
functions,  and  becomes  the  concilium  ordinarium  of  later  times. 
This  fact  is,  however,  a  necessary  key  to  much  in  the  subsequent 
history.  Unless  we  have  it  in  mind  we  cannot  understand  fully 
the  ordinances  of  the  fourteenth  century,  the  court  of  star  cham- 
ber, the  question  of  the  legal  force  of  proclamations,  orders  in 
council,  or  the  judicial  committee  of  the  Privy  Council. 

There  are  certain  cases  recorded  in  which  a  distinction  seems 
to  be  made  more  sharply  and  consciously  than  I  have  supposed 
above.  Particularly  interesting  cases  will  be  found  in  Bracton's 
N.  B.,  pi.  1220  (Madox,  I.  102  /.)  ;  Staff.  Hist.  Coll.,  IV.  122; 
and  Cal.  Charter  Rolls,  1258,  pp.  7,  309.  I  cannot  be  sure  of 
course  that  I  have  discovered  every  case  of  this  kind,  but  I  think 
it  will  be  found  that  such  sharper  distinctions,  when  they  are 
made,  are  drawn  between  the  Bench  and  other  courts,  and  that 
they  are  to  be  accounted  for  by  the  peculiar  origin  of  the  court 
of  Common  Pleas,  as  not  an  offshoot  from  the  small  curia  regis, 
which  I  have  explained  above.  The  references  here  given,  except 

[142] 


THE  FIRST  AGE  OF  CHANGE 

the  first,  show  the  institutional  identity  of  the  central  court  of 
Common  Pleas  and  the  itinerant  justice  courts. 

The  origin  of  the  function  of  a  court  of  errors  is  another  ques- 
tion which  can  only  be  made  a  subject  of  conjecture.  It  seems 
likely  that  it  will  be  found,  if  we  ever  obtain  the  facts,  also  to 
be  closely  connected  with  the  development  of  the  professional 
justice  and  the  differentiation  of  the  courts.  Possibly  as  the  fact 
begins  to  attract  attention  that  one  court  is  more  nearly  as  a 
matter  of  actual  practice  connected  with  the  person  of  the  king 
than  others,  particularly  than  the  itinerant  justice  court,  and  as 
there  begins  to  exist  a  body  of  judges  whose  professional  duty 
it  is  to  know  accurately  the  rules  of  law  and  procedure,  it  begins 
to  be  felt  on  one  side  that  a  breach  of  these  rules  should  be  at 
once  repaired,  and  on  the  other  that  a  court  in  which  the  theory 
of  the  king's  presence  is  more  nearly  realized  can,  perhaps  as  a 
matter  of  prerogative,  correct  the  errors  of  what  must  soon  at 
any  rate  begin  to  be  thought  of  as  an  inferior  court.  The  practice 
of  reserving  difficult  cases  in  the  circuit  courts  nominally  for  the 
king  would  make  the  suggestion  of  such  a  process  in  errors  easy. 
Such  facts  as  we  have  seem  to  support  a  conjecture  of  this  kind. 
Certainly  there  can  be  no  procedure  in  errors  until  a  differentia- 
tion of  courts  is  under  way, 


[143] 


CHAPTER  IV 

THE  GERM  OF  THE  CONSTITUTION 

I  have  said  that  the  great  increase  of  royal  cen- 
tralization during  the  reign  of  Henry  II.  was  ob- 
tained at  the  expense  of  feudalism,  and  that  is  true, 
but  there  is  one  qualification  to  be  made.  It  was 
obtained  at  the  expense  of  feudalism  as  that  affected 
the  rights  and  interests  of  the  individual  baron,  and 
not  as  it  affected  the  general  constitution  of  the  state. 
It  is  of  the  utmost  importance  to  see  that  the  older 
machinery  of  the  central  government  remained  dur- 
ing the  next  generation  unmodified,  however  much 
added  to,  by  the  innovations  of  Henry  II.'s  time. 
Nothing  was  done  away  with;  nothing  was  changed. 
It  remained  a  feudal,  public  assembly,  that  is,  curia 
regis,  constitution,  in  which  the  active  operative  ele- 
ment was  the  baron,  just  as  before,  as  primitive  and 
crude  as  ever,  doomed  now  to  speedy  disappearance, 
but  still  the  chief  reliance  for  carrying  on  the  business 
of  the  state.  Alongside  it  there  had  been  established 
in  the  last  generation  other  ways  of  doing  some  of 
the  same  things,  ways  more  effective  and  more  mod- 
ern in  character,  but  still  closely  connected  with  the 
old.  They  still  rested  on  the  assumption  that  the  feu- 
dal baron  was  the  necessary  agent  through  whom  busi- 

[144] 


THE  GERM  OF  THE  CONSTITUTION 

ness  must  be  done,  though  the  way  had  been  opened 
for  the  rapid  transformation  of  this  idea  into  the 
other  that  it  was  to  be  done  through  the  agent  of  the 
king.1  Realty  of  course  the  new  differed  from  the 
old  most  widely  in  the  fact  that  it  was  based  upon  a 
different  fundamental  idea  of  the  state  from  the 
feudal,2  but  of  this  no  man  was  at  the  time  conscious, 
and  the  fact  showed  itself  only  in  a  closer  connection 
with  the  king,  a  derivation  of  powers  directly  from 
him,  and  a  consequent  use  of  processes  and  rights 
which  had  no  place  in  the  purely  feudal  constitution. 

These  things  have  been  sufficiently  explained  in 
the  last  chapter.  Here  two  points  are  to  be  especially 
noticed  in  regard  to  the  relation  of  the  new  institu- 
tions to  the  older  constitution.  In  the  first  place,  only 
a  portion  of  the  business  of  government  could  be  per- 
formed by  them,  and  second,  no  one  of  them  was  as 
j^et  compulsory,  they  were  at  most  only  alternative 
ways  of  doing  certain  things  which  still  continued  to 
be  done  in  the  old  ways. 

In  the  first  place,  the  new  institutions  performed 
only  two  of  the  functions  of  government,  the  judicial 
and  the  executive  or  administrative — any  traces  of  a 

1  The  assumption  that  the  king's  justice  was  a  baron  and  was  acting  as 
a  baron  in  holding  his  court  was  of  course  more  formal  than  real,  though 
it  had  important  applications  that  were  real.     In  truth  the  text  should 
be  modified  by  the  fact  that  the  substitution  of  a  professional  official 
for  the  feudal  baron  in  doing  so  much  of  the  business  of  the  state  was 
a  long  step  towards  making  the  baron  no  longer  necessary  and  rendering 
the  forming  royal  constitution  independent  of  feudalism.    As  yet,  how- 
ever, there  was  no  sign  of  this  result. 

2  See  notes  24  and  26  below. 

[145] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

legislative  function  are  too  slight  to  be  taken  into 
account.     In  the  end  their  function  was  to  be  even 
less  than  this  because,  while  the  men  of  the  twelfth 
century  may  possibly  have  regarded  their  adminis- 
trative function  as  the  most  important,  they  survived 
in  the  modern  constitution  as  judicial  only.    Admin- 
istrative supervision  was  destined  before  very  long 
to  pass  to  new  differentiations  of  the  small  curia  regis. 
Second,  in  the  exercise  of  these  functions  the  new 
institutions,   though   in   one    sense   generalized    and 
regularized,  opened  to  the  use  of  all  freemen,  re- 
mained still  occasional  in  operation.     The  itinerant 
justice  with  his  new  writs  and  his  jury  did  not  drive 
out   of  existence   in  this   period  the  local  baronial 
courts,    nor    the    sheriff's    county    court,    nor    their 
methods  of  trial.    Any  person  might  if  he  desired  to 
do  so  and  was  willing  to  pay  the  price  demanded, 
make  use  of  the  new  machinery,  but  he  was  under 
no  compulsion  to  do  so.     He  could  still  use  the  old 
courts  and  the  old  methods  if  he  preferred.     To  a 
very  large  extent  the  same  thing  was  true  of  criminal 
justice.     It  was  still  possible  for  any  given  crime  to 
be  tried  as  if  the  Assize  of  Clarendon  had  never  been 
adopted.    Nor  did  the  itinerant  justice  with  his  very 
effective  means  of  holding  the  sheriffs  in  check  take 
the  place  of  the  exchequer  court.     Again,  it  is  not 
possible  to  find  any  reflex  influence  of  the  new  insti- 
tutions upon  the  methods  and  procedure  of  the  corre- 
sponding portions  of  the  old  constitution.    These  new 

[146] 


THE  GERM  OF  THE  CONSTITUTION 

institutions  had  arisen  as  alternatives  to  the  old,  but 
at  no  point  had  they  supplanted  or  modified  them. 

It  is  to  be  noticed  further  that  the  reigns  of  Richard 
and  John  added  nothing  to  this  body  of  new  institu- 
tions. The  tendency  to  innovation,  if  we  may  put  it 
in  that  way,  which  had  characterized  the  reign  of 
Henry  II.  in  producing  a  series  of  judicial  and 
administrative  changes,  shows  itself  in  the  reigns  of 
his  sons  in  a  tendency  towards  change  in  the  financial 
system  of  the  state,  affecting  the  methods  of  obtain- 
ing revenue  and  its  amount.  This  was  probably  the 
logical  step  for  the  second  generation  to  take,  but 
whatever  may  be  the  results  in  this  direction  finally 
traceable  to  the  experiments  of  these  two  reigns,  cer- 
tainly at  the  time  of  the  revolutionary  movement, 
which  closed  the  reign  of  John,  no  results  had  been 
reached  of  which  we  may  say  that  they  had  become 
recognized  parts  of  the  constitution,  or  created  regu- 
lar methods  in  finance  alongside  the  old,  or  still  less 
which  had  modified  or  done  away  with  them. 

Now  the  conclusion,  which  it  seems  to  me  impos- 
sible to  dispute,  is  this :  England  remained  to  the  close 
of  the  reign  of  John  a  thoroughly  feudal  state.  In 
spite  of  the  innovations  of  Henry  II.'s  reign  there 
had  been  as  yet  no  essential  departure  from  the  feudal 
type  of  government  as  seen  in  all  the  contemporary 
states  of  western  Europe.3  One  great  difference  of 

3  The  extent  to  which  feudalism  pervades  the  historical  sources  of  the 
Norman  and  early  Angevin  reigns  has  hardly  been  sufficiently  recog- 
nized. Had  every  other  monument  of  feudal  law  disappeared  it  would 

[147] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

course  existed,  and  this  I  have  tried  to  make  clear,  in 
the  powerful  monarchy,  the  close  centralization  of 
the  Anglo-Norman  state.  But  of  this  difference  it 
is  to  be  said  in  the  first  place  that  while  it  had  decid- 
edly affected  the  practical  condition  of  things  usually 
found  under  a  feudal  government — the  splitting  up 
of  the  state  into  locally  independent  fragments 
whether  that  independence  be  regarded  as  territorial, 
or  as  political  and  judicial,  as  expressed  in  Glanvill, 
XII.  6,  it  had  affected  the  general  machinery  scarcely 
at  all — other  machinery  was  occasionally  in  use,  was 
coming  into  more  and  more  frequent  use,  but  it  had 
driven  the  feudal  out  of  use  at  no  point,  had  nowhere 
broken  the  completeness  of  the  feudal  constitution. 
It  is  to  be  said  in  the  second  place  that  the  methods 
and  the  results  of  the  Angevin  monarchy  in  its  cen- 
tralization of  the  state  seem  to  be  those  natural  to  the 
transformation  of  the  feudal  into  the  modern  consti- 
tution. France,  for  example,  a  few  generations  later 
and  more  slowly  adopted  almost  identical  methods 
with  almost  identical  results.  It  is  not  the  English 
absolutism  which  is  abnormal;  it  is  the  English  limited 
monarchy. 

be  possible  to  reconstruct  almost  the  whole  body  of  it  from  the  second 
volume  of  the  Abingdon  Chronicle  alone.  By  that  I  mean  of  course  the 
living  principles  and  practices  of  the  tenth  and  eleventh  centuries,  not 
the  more  highly  elaborated  and  technical  law  of  the  thirteenth  century 
and  later  lawyers.  Some  other  collections  give  more  information  still 
upon  special  sides  of  feudalism,  as  the  Ramsey  cartulary  upon  eco- 
nomic feudalism  and  the  Gloucester  cartulary  upon  the  legal  questions 
involved  in  the  transfer  and  lease  of  land. 

[148] 


THE  GERM  OF  THE  CONSTITUTION 

I  think,  indeed,  that  we  may  say  of  the  England 
of  1215,  regarding  it  as  a  state,  and  considering  feu- 
dalism as  one  type  of  organization  for  carrying  on  the 
business  of  the  state,  that  it  is  the  most  perfectly  logi- 
cal feudal  kingdom  to  be  found  in  Christendom.*  In 
other  countries  results  which  we  consider  logical  out- 
growths of  feudalism  are  more  plainly  seen  in  local 
independence  and  political  separation  and  diversity, 
but  these  results,  while  in  one  sense  logical,  are  really 
obtained  by  an  overemphasis  of  certain  feudal  prin- 
ciples, the  rights  allowed  the  vassal,  or  usurped  by 
him,  which  destroys  the  balance  of  the  constitution  as 
a  whole.  In  England  the  unusual  emphasis  upon  the 
rights  of  the  suzerain  counteracted  this  tendency  as 
seen  in  other  feudal  states  and,  while  it  did  not  take 
away  from  the  importance,  nor  interfere  with  the 
function  of  the  vassal,  it  did  maintain  the  logical  bal- 
ance in  the  entire  organization. 

Now  the  bearing  of  all  that  has  gone  before  is 
this: 

The  problem  of  the  origin  of  the  English  Consti- 
tution is  not  the  problem  of  the  origin  of  specific  insti- 
tutions. It  is  rather  that  of  ascertaining  how,  and,  if 
possible,  where,  the  constitutional  development  of  that 
country  branched  off  the  line  of  growth  common  to 
medieval  monarchies.  At  some  point  of  time  Eng- 
land entered  a  road  new  in  history,  trodden  by  no 
other  people  and  leading  to  a  result  never  arrived  at 

*See  note  A  at  the  end  of  the  chapter  (p.  186). 

[149] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

elsewhere — full  and  free  national  self-government, 
under  the  forms  of  a  monarchy  and  the  theory  of  an 
unlimited  kingship.  But  it  did  so  from  a  constitu- 
tional beginning  practically  identical  with  France. 
France  came  out  of  the  Middle  Ages,  however,  with 
an  absolute,  and  England  with  a  limited  monarchy. 
To  find  the  how  and  when  of  this  divergence  is  to  fix 
the  origin  of  the  English  Constitution.  What  we 
have  tried  to  show  to  this  point  is  that  it  is  impossible 
to  place  the  date  of  this  divergence  earlier  than  1215. 
We  have  followed  the  history  of  the  constitution  from 
the  Norman  Conquest  to  the  end  of  John's  reign  and 
have  examined  its  general  character  and  the  ten- 
dencies towards  change  which  have  appeared  in  it. 
The  inevitable  conclusion  is  that  at  the  beginning 
of  the  thirteenth  century  England  was  still  a  com- 
pletely feudal  state,  varying  from  its  contemporaries 
not  at  all  in  the  direction  of  a  limited,  but  decidedly 
in  the  direction  of  an  absolute  monarchy.  In  all  the 
changes  which  had  occurred  before  1215  there  is  no 
evidence  of  anything  like  the  beginning  of  an  insti- 
tutional check  upon  the  will  of  the  sovereign.  If  the 
conditions  of  the  time  looked  forward  to  anything  it 
was  to  an  almost  ideal  absolutism,  a  government  in 
which  all  the  machinery  should  be  operated  by  the 
king  and  exist  only  to  give  expression  to  his  will,  with 
no  means  of  limiting  that  will  or  even  of  giving 
expression  to  a  will  in  opposition.  The  tendency 
which  is  latent  in  feudalism  in  the  contract  rights  of 

[150] 


THE  GERM  OF  THE  CONSTITUTION 

the  vassal  to  check  the  arbitrary  action  of  the  suze- 
rain, which  was  so  soon  to  bring  about  results  of  the 
utmost  importance,  had  as  yet  shown  no  sign  of 
development.  The  most  that  we  can  say  about  it  is 
that  in  the  reigns  of  Richard  and  John  the  barons 
were  coming  to  recognize  more  consciously  the  exist- 
ence of  their  definite  rights  and  the  possibilities  they 
offered.  Certainly  this  tendency  had  given  rise  as 
yet  to  no  institutional  forms  of  action.  In  the  gen- 
eral constitution  of  John's  reign,  and  in  the  indi- 
vidual institutions  by  which  the  constitution  was 
operated,  we  find  only  what  is  common  to  all  feudal 
states  or  peculiarities  which  mean  a  greater  central- 
ization and  a  more  powerful  kingship.5 

As  a  matter  of  fact,  this  increased  power  John  used 
to  as  full  advantage  as  was  possible  for  that  time.  I 
believe  that  the  tremendous  power  which  he  exer- 
cised over  a  reluctant  baronage  and  a  hostile  but 
cowering  church,  even  until  after  the  battle  of  Bou- 
vines,  though  it  had  begun  to  weaken  before  that  date, 
has  never  been  emphasized  enough.  If  one  considers 
the  situation  carefully,  especially  after  the  ineffective 
interdict  and  excommunication,  it  seems  impossible 
to  state  too  strongly  the  utter  powerlessness  of  every 

5  In  one  sense  we  may  say  that  this  means  merely  that  England  was  a 
feudal  state  of  the  type  of  a  barony  rather  than  that  of  a  kingdom. 
The  expansion  of  the  feudalism  of  the  duchy  of  Normandy  into  that  of 
the  kingdom  of  England  had  taken  place  without  any  essential  change 
in  the  character  of  the  relations  between  the  suzerain  and  his  vassals. 
Cf.  A.  H.  R.,  V.  645. 

[151] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

element  in  the  state  as  against  the  king.  I  doubt  if 
there  is  to  be  found  a  like  instance  of  arbitrary  power 
in  medieval  history  in  the  case  of  a  sovereign  so 
nearly  dependent  on  himself  alone.  To  be  sure  John 
had  been  forced  to  yield  in  1213,  but  he  had  yielded 
so  suddenly  and  with  such  consummate  skill  in  adapt- 
ing what  he  did  to  the  one  real  necessity  of  the  case 
and  no  more,  that  his  hold  upon  the  kingdom  was  for 
the  time  being  only  slightly  loosened.6  But  whatever 
one  may  think  of  John's  position,  the  situation  on  the 
eve  of  1215  promised  a  very  different  outcome  of 
English  history  from  that  which  actually  occurred. 
It  is  impossible  to  find  in  it  any  reasons  for  suspect- 
ing that  England  had  departed,  or  was  about  to 
depart,  in  any  essential  matter,  from  the  usual  devel- 
opment of  a  feudal  constitution,  least  of  all  in  the 
direction  of  a  limited  monarchy. 

If  now,  in  seeking  to  determine  the  point  at  which 
the  drift  towards  a  limited  monarchy  begins,  we  turn 
to  the  time  following  1215,  we  are  confronted  with  a 
similar  condition  of  things.  It  is  indeed  true  that 

6  My  argument  in  volume  II.  of  Hunt  and  Poole's  The  Political  History 
of  England,  p.  424,  for  the  view  that  John's  act  of  homage  was  of  his 
own  policy,  and  not  demanded  by  the  pope,  has  been  questioned.  This 
view  still  seems  to  me  decidedly  the  more  probable.  It  is  less  important, 
however,  to  determine  what  one  shall  believe  about  a  question  which 
must  always  be  a  matter  of  opinion,  than  to  see  how  indispensable  the 
act  was  to  John's  security,  and  that  nothing  less  would  have  averted  the 
French  invasion.  I  believe  it  entirely  consistent  with  the  political  char- 
acter which  John  shows  throughout  his  reign  to  suppose  that  he  saw 
this  as  clearly  as  we  can  and  shaped  his  action  accordingly. 

[152] 


THE  GERM  OF  THE  CONSTITUTION 

so  far  as  feudalism  is  concerned  there  is  evident  at 
the  close  of  the  thirteenth  century  a  complete  and 
revolutionary  change,  as  if  there  had  occurred  some- 
where in  the  interval  a  night  of  the  4th  of  August  and 
the  meeting  of  a  Constituent  Assembly.  Feudal- 
ism— true  feudalism — had  disappeared  as  a  ruling 
system  from  the  domain  of  both  public  and  private 
law,  or  it  would  perhaps  be  more  accurate  to  say  that 
as  a  political  and  economic  system  feudalism  was  just 
transforming  itself  into  its  most  permanent  contri- 
butions to  English  institutions,  under  anything  like 
the  original  form;  on  one  side  into  the  land  law,  even 
at  that  date  highly  artificial  because  based  upon  a 
system  which  no  longer  corresponded  with  the  facts, 
and  on  the  other  side  into  the  group  of  new  institu- 
tions derived  from  the  curia  regis,  of  which  the  most 
important  from  a  general  point  of  view  was  the 
Parliament.  But  these  changes  did  not  essentially 
affect  the  character  of  the  kingship  and  it  is  a  hundred 
and  fifty  years  after  the  date  of  Magna  Carta  before 
we  can  find  any  institution  forming  a  permanent  part 
of  the  constitution,  that  is,  which  is  not  merely  a  tem- 
porary experiment,  of  which  we  can  say  that  it  had 
for  its  object  to  secure  the  operation  of  a  limited 
monarchy.  It  is  generations  of  time  in  other  words 
before  we  can  detect  any  essential  institutional  de- 
parture from  the  type  of  the  continental  state  which 
becomes  a  permanent  part  of  the  constitution  and 
which  we  may  be  certain  is  in  the  direction  of  a  limited 

[153] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

monarchy.7  All  the  constitutions  which  grew  out  of 
the  feudal,  including  the  English,  were  alike  in  their 
general  features  so  far  as  the  machinery  of  govern- 
ment was  concerned.  In  all  alike  the  curia  regis,  the 
great  mother  of  institutions,  gave  birth  to  practically 
the  same  progeny,  growing  up  to  closely  similar 
results.  Peculiarities  there  were  in  each  state,  differ- 
ences of  detail,  of  form  rather  than  of  method  or 
character;  but  England  differs  no  more  widely  from 
what  may  be  called  the  normal  type  than  do  other 
states,  probably  less  than  does  Germany.  Some  of 
the  English  differences  may  be  thought  to  be  very 
essential  elements  of  constitutional  government,  some 
details  of  the  judicial  system,  some  features  of  local 
government,  the  composition  and  organization  of 
Parliament,  and  they  certainly  were  of  great  assist- 
ance in  the  making  of  the  constitution,  but  it  did  not 
come  from  them.  All  such  peculiarities  of  the  Eng- 
lish Constitution  taken  together  would  never  have 
produced  a  limited  monarchy.  It  is  indeed  true  that 
the  constitution  was  practically  completed,  all  its 
great  principles  were  established,  before  institutions 
which  may  be  said  to  be  peculiar  to  itself  had  come 
into  existence.  They  concern  details, — not  the  general 
character  of  the  government  as  a  whole;  no  one  of 
them  furnished  a  unifying,  organizing  principle. 

7  The  process  of  impeachment  is  the  first  thing,  I  think,  of  which  exactly 
this  may  be  said,  though  of  course  by  the  end  of  the  reign  of  Edward  III. 
Parliament  had  made  great  progress  along  the  line  described  below. 

[154] 


THE  GERM  OF  THE  CONSTITUTION 

They  were  brought  together  and  made  parts  of  the 
constitution  by  something  outside  themselves. 

In  fact  the  final  constitution,  to  the  present  time, 
has  consisted  less  in  institutions  that  are  peculiar  to 
itself  than  in  the  fact  that  institutions  common  in 
their  general  form  to  many  states  have  been  used  for 
purposes,  to  embody  and  protect  ideas,  not  found 
elsewhere,  and  have  been  by  degrees  in  consequence 
of  such  uses  somewhat  transformed  in  character.  It 
was  not  by  the  development  of  new  machinery  of 
government  that  the  difference  between  the  French 
and  English  constitutions  was  brought  about.  It  is 
elsewhere  than  in  institutions  proper  that  we  must 
look  for  that  which  brings  about  the  peculiar  result. 
Were  it  not  for  the  fact  that  we  are  often  satisfied 
with  explaining  this  difference  by  calling  attention 
to  such  things  as  the  jury,  the  survival  of  election,  the 
composition  of  the  House  of  Commons  and  the  pecu- 
liar characteristics  of  the  English  peerage,  it  would 
not  be  necessary  to  insist  upon  this  point  with  em- 
phasis, because  institutions  are  always  results.  The 
idea  goes  before  the  form.  The  thing  in  its  reality 
is  already  in  existence,  or  it  is  rapidly  coming  into 
existence,  before  it  takes  on  the  guise  of  an  institution. 

It  is  to  the  realm  of  legal  and  constitutional  ideas, 
then,  that  we  must  look  to  find  the  peculiar  influence 
in  English  history  which  explains  its  peculiar  result. 
There  must  have  been  present  during  the  formative 
centuries,  the  thirteenth  and  fourteenth,  some  guiding 

[155] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

and  selective  principle,  actively  influencing  affairs 
from  time  to  time  and  producing  that  transformation 
of  constitutional  ideals  and  uses  which  made  the 
English  unique  among  governments  at  the  close  of 
the  Middle  Ages  and  in  modern  times  the  model  of 
most  states. 

It  is  easy  to  understand  upon  what  point  in  the 
constitution  as  it  existed  in  the  early  thirteenth  cen- 
tury such  an  idea  must  bear;  against  what  danger  it 
must  strive;  what  opposing  tendency  it  must  over- 
come. The  direction  in  which  the  only  tendency  to 
constitutional  change  in  England  was  setting  has 
already  been  made  clear.  It  was  an  absolute  mon- 
archy which  was  forming  itself,  which  had  already 
formed  itself  and  which  bade  fair  to  drive  all  other 
forms  of  government  out  of  the  field.  As  feudalism 
began  to  give  way  before  the  new  social  and  economic 
influences  of  the  time,  the  one  danger  was  that  the 
king  should  retain  over  the  modern  institutions  into 
which  feudalism  was  changing  the  same  absolute  con- 
trol under  which  he  had  held  the  feudal  machinery, 
and  this  was  all  the  more  likely  because  the  modern 
institutions  were  forming  themselves  out  of  the  royal 
prerogative.  A  formative  idea,  shaping  the  English 
Constitution  into  a  limited  monarchy,  must  at  the 
very  start  oppose  the  ideal  of  an  absolute  king,  must 
proclaim  that  there  was  some  limitation  on  his  arbi- 
trary will,  on  his  prerogative  power,  and  must  set 
up  limitations  of  such  a  sort  as  to  admit  of  easy  and 

[156] 


THE  GERM  OF  THE  CONSTITUTION 

constant  enlargement.  The  tyranny  of  John  could 
have  been  transformed  into  the  constitutional  mon- 
archy of  the  Lancastrian  age  in  no  other  way.  A 
baronage  determined  to  protect  its  privileges,  an 
ambitious  House  of  Commons,  a  third  estate  un- 
usually influential  in  public  affairs,  could  have  made 
no  such  constitution  except  under  the  guidance  of 
some  general  principle,  by  which  all  classes  could 
work,  in  every  generation  alike,  and  which  would 
grow  consistently  and  continuously  as  the  enlarging 
interests  of  men  demanded.8 

This  guiding  and  creative  principle  is  to  be  found 
in  the  idea  that  there  existed  a  body  of  understood, 
more  or  less  definitely  formulated  rights  which  the 
king  was  bound  to  observe  and  which  those  who  at 
any  point  of  time  formed  the  operative  force  of  the 
nation  had  the  right  to  force  him  to  observe  if  he 
showed  himself  disposed  not  to  do  so.9  In  every  case  of 
open  conflict  between  the  king  and  the  nation,  or  what 
stands  for  it,  from  1215  to  1689,  this  is  the  under- 
lying assumption  of  those  who  oppose  the  king.  He 

8  It  may  perhaps  be  thought  that  the  establishment  of  such  an  oligarchy 
as  that  threatened  by  the  Provisions  of  Oxford,  presents  a  third  possi- 
bility, but  not,  I  think,  in  the  actual  situation  in  England.     The  baron- 
age was  too  weak,  between  the  king  on  one  side  and  the  third  estate  on 
the  other,  to  give  rise  to  any  real  danger. 

9  I  should  not  be  understood  to  affirm  that  this  principle — the  king  is 
bound  to  observe  a  specific  body  of  law — is  peculiar  to  England.     The 
same  principle  is,  to  a  greater  or  less  extent,  involved  in  the  constitu- 
tion of  every  feudal  state,  and  in  some  cases,  like  Aragon  and  Hungary, 
it  comes  to  very  conscious  institutional  expression.     It  is  only  England, 
however,  which  makes  it  permanent  and  fruitful  in  modern  governments. 

[157] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

is  doing  something  which  he  has  no  right  to  do.  If 
he  cannot  be  persuaded  to  change  his  conduct,  the 
nation  is  within  its  rights  not  merely  in  forcing  him 
to  do  so,  but  in  binding  future  kings  not  to  repeat 
these  acts.  This  principle  is  imperfectly  stated  unless 
both  parts  are  included  in  it.  The  second  half,  the 
right  of  coercion,  was  as  essential  a  part  of  it  as  the 
first,  more  so,  if  that  were  possible,  for  without  this 
right  and  its  successful  exercise  the  idea  of  a  body  of 
law  above  the  king  would  probably  have  disappeared 
leaving  behind  it  no  practical  result.  If  this  is  true, 
it  follows  that  the  real  line  of  the  early  development 
of  the  constitution,  of  the  events  which  by  degrees 
called  it  into  existence,  is  not  the  development  of 
Parliament,  but  the  line  of  the  enforcement  of  this 
right  of  coercion.  The  history  of  Parliament  is  the 
history  of  the  independent  and  unintended  formation 
of  the  institution  which  finally,  when  the  idea  had 
become  firmly  established,  was  to  assume  its  guardian- 
ship and  enforcement;  but  the  history  of  Parlia- 
mentary origins  and  growth  is  not  the  history  of  the 
origin  of  the  limited  monarchy. 

I  have  said  that  for  generations  this  idea  was  em- 
bodied in  no  peculiar  institutions,  and  this  is  true. 
Men  devised  no  successful  machinery  to  give  it  per- 
manent expression.  But  I  do  not  mean  to  say  that  no 
attempt  was  made  to  create  such  machinery.  It  would 
have  been  impossible  for  such  an  idea  to  survive  and  to 
exert  any  real  influence  upon  the  course  of  constitu- 

[158] 


THE  GERM  OF  THE  CONSTITUTION 

tional  development  except  through  some  institutional 
expression  however  much  the  form  of  that  expression 
might  vary  in  different  generations,  or  however 
transient  any  particular  phase  of  it  might  be.  There 
was  in  fact  much  experimenting.  From  time  to  time 
institutions  were  invented,  and  machinery  set  up  with 
the  conscious  purpose  of  enforcing  this  principle,  and 
with  more  or  less  definite  hope  of  permanence.  But 
nothing  of  the  sort  was  really  successful  or  lasted 
beyond  the  mere  occasion  which  called  it  into  being. 
There  was,  to  be  sure,  a  general  likeness  in  all  these 
early  attempts.  The  cases  under  John,  Henry  III., 
Edward  II.,  Richard  II.  and  Henry  IV.  have  a  gen- 
eral similarity  of  method  and  character.10  The  vest- 
ing of  royal  powers  in  a  commission,  or  the  trans- 
ferring of  the  direct  responsibility  of  royal  officers  to 
Parliament  were,  one  or  both,  typical  features  of  all 

1°  There  is  a  kind  of  Parliamentary  control  of  appointments  and  of  offi- 
cial responsibility  to  Parliament  which  seems  to  be  developing  in  the 
last  half  of  the  reign  Edward  III.,  in  the  case  of  the  treasurer,  for 
instance,  which  is  not  exactly  like  that  in  the  cases  of  1258  or  1310.  See 
Stubbs,  II.,  sections  287-288.  It  has  nothing  revolutionary  in  character; 
it  develops  naturally  out  of  the  circumstances  of  the  time  and  seems 
to  promise  something  of  permanence.  But  it  does  not  prove  to  be  per- 
manent. The  later  Parliamentary  control  of  government  does  not  grow 
out  of  it.  If  one  analyzes  sharply  the  cases  of  all  kinds  where  such 
early  Parliamentary  control  was  exercised,  there  would  seem  to  be  in 
their  occasion,  in  the  way  in  which  they  were  brought  about,  three  differ- 
ent kinds  of  cases.  Those  originating  in  a  revolutionary  situation,  like 
the  Provisions  of  Oxford,  and  the  Lords  Ordainers;  a  natural  growth 
out  of  the  immediate  situation,  as  under  Edward  III.;  and  those  cases 
where  advantage  is  taken  of  a  regency,  or  something  like  a  regency,  as 
in  the  time  of  Richard  II.  and  Henry  IV.  They  are  all  alike,  however, 
in  general  character. 

[159] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

the  cases.  But  open  assumption  of  the  royal  power, 
or  of  any  royal  prerogative,  by  Parliament,  or  by  any 
commission  in  name  or  form  a  creature  of  Parliament, 
was  not  to  be  the  way  of  the  constitution.11 

This  early  experimenting,  of  which  the  Provisions 
of  Oxford  is  the  most  typical  example,  was  all  in  the 
wrong  direction,  doomed  to  and  deserving  failure. 
And  it  possessed  in  no  single  instance  any  element 
of  permanence.  Each  case  grew  out  of  a  special  sit- 
uation and  lasted  only  so  long  as  the  situation  con- 
tinued. Nor  is  there  to  be  found  any  line  of  institu- 
tional connection  between  the  cases.12  On  every  new 
occasion  when  it  was  necessary  to  apply  the  funda- 
mental principle,  a  method  was  devised  anew  and, 
whenever  any  line  of  connection  between  two  cases 
can  be  made  out,  it  is  at  best  only  one  of  precedent 

11  This  very  essential  peculiarity  of  the   English   Constitution,  that  in 
form    and   theory    Parliament    does    not    exercise   the   sovereignty,    nor 
directly    appoint    or    depose    the    agents    of    government,    while    really 
supreme,  was   secured  by  the  relation  of  Parliament  to  the  origin  of 
limited  monarchy  described  above.     It  did  not  become  the  instrument 
by  which  limitations  were  enforced  upon  the  king  until  it  had  itself  so 
far  developed  as  to  have  become  independent,  to  have  found  its  proper 
place  in  the  constitution  in  relation  to  the  other  institutions  of  which 
that  is  composed,  and  especially  until  its  relation  to  the  king  had  become 
well  established.     It  was   of  exceeding  advantage   also   in   this   respect 
that   final   trial   of   the   issue   between   king   and   Parliament   as   to   the 
place   where   actual   sovereignty   should   reside  in   the   constitution   was 
deferred  to  the  seventeenth  century.     The  true  drift  of  things  had  by 
that  time  begun  to  be  perceived  or,  it  would  perhaps  be  better  to  say, 
was  rapidly  made  apparent. 

12  The  demands  for  the  confirmation  of  Magna  Carta  do   form  a  con- 
tinuous line  of  connection,  but  a  line  not  of  institutions.     They  express 
rather  the  idea  which  lay  behind  all  the  experiments.     I  shall  later  have 
something  to  say  of  these  demands. 

[160] 


and  remembrance,  and  not  of  the  continuous  growth 
of  an  institution.  Even  precedent  does  not  accumu- 
late. No  advancement  is  apparent.  No  later  case 
builds  on  its  predecessors,  or  goes  on  to  improve  what 
had  been  before  into  a  more  perfect  or  lasting  instru- 
ment for  controlling  the  king.  The  instances  are  indi- 
vidual, disconnected  and  unprogressive,  but,  as  they 
are  all  instances  of  enforcing  upon  the  king  respon- 
sibility to  the  constitution  as  it  existed  at  the 
moment,  the  fact  cannot  be  taken  to  prove  that  in 
the  meantime  the  fundamental  principle  had  fallen 
out  of  sight. 

But  while  this  abortive  experimenting  had  been 
going  forward,  there  went  on  a  quite  independent 
line  of  evolution  which  is  characterized  by  all  that 
these  attempts  lack.  It  is  continuous,  cumulative  and 
progressive.  At  first  it  had  nothing  to  do  with  the 
coercion  of  the  king,  gradually  more,  and  from  the 
end  of  the  fourteenth  or  early  in  the  fifteenth  century 
it  absorbed  into  itself  the  line  of  experiments  which 
before  had  been  without  permanent  result,  and 
became  the  sole  guardian  of  the  interests  of  the 
nation  as  against  the  king.13  This  is  the  evolution  of 

i3 1  think  we  may  say  that  Parliament  begins  to  assume  this  position  in 
the  first  period  of  the  reign  of  Richard  II.,  though  of  course  its  action 
at  that  time  had  been  prepared  for  and  led  up  to  by  the  history  of  the 
last  years  of  Edward  III.  The  reign  of  Richard  is  characterized  by  the 
great  rapidity  with  which  Parliament  becomes  conscious  of  its  power 
and  by  the  fact  that  the  baronial  opposition  acts  now  quite  as  much  in 
and  through  Parliament  as  outside  it.  Richard's  own  policy  after  his 
second  marriage  is,  I  believe,  to  be  most  reasonably  accounted  for  by 

[161] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

Parliament,  or  to  distinguish  and  to  name  that  which 
really  evolved  and  which  brought  about  the  great 
result,  it  is  the  evolution  of  the  House  of  Commons. 
That  evolution,  so  far  as  we  are  concerned  with  it, 
however,  did  not  consist  in  any  perfection  of  Parlia- 
ment as  an  institution.  The  constitutional  result  was 
not  reached  because  there  were  two  houses  instead  of 
three,  nor  because  the  minor  nobility  united  with  the 
burgesses  to  form  the  House  of  Commons,  nor 
because  of  the  growing  definiteness  of  the  constitu- 
tion and  organization  of  Parliament  as  the  fourteenth 
century  went  on.  Improvement  of  Parliamentary 
machinery  assisted  the  process,  but  only  by  rendering 
it  easier  and  more  likely  to  be  continuous. 

What  made  Parliament  finally  the  embodiment  of 
the  fundamental  principle  of  the  constitution  was  the 
fact  that  through  the  whole  fourteenth  century  it  had 
been  steadily  enlarging  the  body  of  law  which  the 

supposing  that  he  also  saw  clearly  what  Parliament  had  become  and 
the  danger  to  the  monarchy  which  it  threatened.  It  is  in  the  next 
period,  however,  that  Parliament  assumes  a  constitutional  power  almost 
modern,  though  exercised  by  means  more  closely  related  with  the  past 
than  with  the  future.  It  was  for  this  reason,  probably,  that  the  per- 
manent results  of  the  Lancastrian  period  were  less  important  institu- 
tionally than  as  fixing  the  position  of  Parliament  and  creating  a  habit 
of  opinion  about  its  function  in  the  state  and  relationship  with  other 
institutions  which  carried  it  without  loss  through  the  Tudor  age.  States- 
men as  keen  as  Henry  VIII.  and  Thomas  Cromwell  perceived  at  once 
how  easily  and  peacefully  revolution  could  be  imposed  upon  the  nation 
if  Parliament's  constitutional  power  was  employed  to  bring  it  in.  In 
this  way  the  absolutism  of  the  sixteenth  century  prepared  the  way  for 
the  increasing  clearness  with  which,  during  the  first  half  of  the  seven- 
teenth century,  understanding  was  developing,  not  merely  of  constitu- 
tional government  itself,  but  of  the  ground  of  right  on  which  it  rests. 

[162] 


THE  GERM  OF  THE  CONSTITUTION 

king  must  observe,  and  in  most  important  particu- 
lars. Beginning  with  and  assuming  control  of  the 
specific  principle  that  there  should  be  no  taxation 
without  consent,  Parliament  gradually  made  clear  its 
bearing  and  enlarged  its  scope  to  include  all  sources 
of  revenue  except  those  of  the  feudal  suzerain,  and 
indeed  encroached  most  seriously  on  these  in  the 
matter  of  tallage.  From  this  vantage  ground  it 
reached  forward  to  the  assertion,  not  yet  fully  under- 
stood in  all  its  bearings,  that  the  king's  expenditure 
of  his  revenue  should  be  limited  by  the  specifications 
of  the  grant.  During  the  same  time  in  a  different 
direction,  Parliament  was  making  another  addition 
to  the  law  which  the  king  must  obey,  more  difficult 
and  also  more  significant  and  decisive,  because  wholly 
new.  This  was  the  establishment  of  the  principle 
that  the  House  of  Commons  must  be  consulted  and 
consent  to  every  new  act  having  the  force  of  law.  In 
demanding  that  its  consent  should  always  be  obtained 
to  taxation,  Parliament  was  only  assuming  to  itself 
the  exercise  of  a  right  of  the  individual  vassal  which 
the  feudal  law  had  clearly  and  everywhere  recognized 
and  which  the  great  council,  as  standing  for  the 
class,  had  assumed  before  the  existence  of  Parliament 
in  c.  12  of  Magna  Carta  and  throughout  the  reign  of 
Henry  III.  As  the  feudal  income  broadened  out  to 
meet  the  exigencies  of  the  modern  state,  Parliament 
insisted  that  the  principle  of  consent  should  broaden 
also  to  cover  all  forms  of  taxation.  This  was  a  logical 

[163] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

demand,  and  even  a  king  like  Edward  I.  found  that 
it  had  been  so  strongly  fortified  by  the  earlier  events 
of  the  thirteenth  century  that  it  was  not  possible  to 
resist  it,  and  he  was  forced  against  his  will  to  restore 
it  to  the  Great  Charter.  But  in  assuming  an  exclu- 
sive right  to  make  new  laws,  and  particularly  in 
asserting  a  right  of  consent  to  new  law  for  that  wholly 
unfeudal  institution,  the  House  of  Commons,  the 
Parliament  of  the  fourteenth  century  was  taking  a 
position  in  which  it  could  find  no  support  in  the  old 
feudal  constitution  and  which  was  an  enlargement  of 
the  law  above  the  king  almost  revolutionary  in  char- 
acter. It  is  likely  that  no  such  assumption  could  have 
been  made,  and  clearly  it  could  not  have  been  estab- 
lished but  for  the  progress  which  Parliament  had 
made  in  the  matter  of  taxation.  There  had  been  very 
little  that  may  be  called  new  legislation  in  the  modern 
sense  during  the  feudal  age,  but  what  there  had  been 
was  the  act  of  king  and  curia.  In  this,  as  in  other 
respects,  there  had  been  no  distinction  between  the 
great  and  the  small  curia,  and  in  this,  as  in  other 
respects,  the  functions  of  the  old  curia  regie  descended 
along  the  line  of  the  council  as  legitimately  as  along 
that  of  the  House  of  Lords.14  For  Parliament  to 

14  See  The  Descendants  of  the  Curia  Regis,  appendix  I.,  p.  343.  It  is  to  be 
said  in  modification  of  the  text  that  some  distinction  did  exist  between 
the  two  bodies  in  practice,  but  it  was  like  that  which  existed  between 
them  in  the  judicial  function  of  the  curia.  It  was  based  on  the  impor- 
tance of  the  case  or  of  the  parties  concerned.  It  was  a  distinction  of 
fitness,  of  convenience,  determined  by  the  specific  occasion,  and  not 
growing  out  of  a  difference  of  function  or  of  right.  In  other  words  it 

[164] 


THE  GERM  OF  THE  CONSTITUTION 

assert  that  an  act  of  legislative  character  by  the  king 
and  the  upper  house,  or  by  the  king  and  the  council, 
must  not  have  the  same  force  as  a  statute,  was  to  go 
counter  to  all  precedents  not  merely  of  feudalism  at 
its  height,  but  of  the  thirteenth  century  as  well.  But 
this  it  did  assert  and  in  the  end,  so  far  as  the  main 
point  was  concerned,  the  king  yielded. 

But  it  was  not  alone,  though  chiefly,  by  enlarging 
the  law  which  binds  the  king  that  Parliament  was 
becoming  the  guardian  and  creator  of  the  constitu- 
tion. In  beginning  to  audit  the  treasurer's  accounts 
in  the  reign  of  Edward  III.,  in  the  party  struggles 
of  the  close  of  that  reign  and  the  first  years  of  the 
reign  of  Richard  II.,  in  the  application  of  old  prin- 
ciples and  forms  to  the  new  use  of  impeachment,  in 
the  coercion  of  Richard  in  the  first  part  of  his  reign, 
and  in  the  successful  revolution  at  its  close,  Parlia- 
ment was  advancing  by  other  steps  than  the  making 
of  new  law  to  stand  in  the  balance  over  against  the 
king,  and  to  assume  the  direction  of  constitutional 
growth.  This  is  the  period,  the  last  part  of  the  four- 
teenth century,  when,  as  I  think,  the  two  lines  of 

was  not  a  distinction  of  an  institutional  nature.  Probably  to  complete 
the  explanation  of  this  legislative  advance  there  should  be  taken  into 
account  the  rapid  dying  out  of  political  feudalism,  and  indeed  of  the 
most  fundamental  feudal  distinctions,  which  accompanied  the  early 
stages  of  Parliamentary  history.  Had  the  feudal  point  of  view  been 
retained,  even  no  more  perfectly  than  in  the  first  half  of  the  reign  of 
Henry  III.,  it  is  likely  that  the  development  would  have  taken  the  more 
normal  form  of  a  coordinate,  rather  than  a  supreme  legislative  right  in 
Parliament.  See  note  B  at  the  end  of  the  chapter  (p.  194). 

[165] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

development  which  had  been  going  on  independently, 
the  natural  development  of  Parliament  and  the  line 
of  experimenting  in  methods  of  coercing  the  king, 
really  coalesce  into  one,  and  henceforward  the  natural 
development  of  Parliament  and  its  powers  is  at  the 
same  time  the  natural  development  of  the  limited 
monarchy.  The  Lancastrian  period,  startlingly  and 
prematurely  modern  when  considered  constitution- 
ally, is  an  age  when  the  idea  and  practice  of  Parlia- 
mentary leadership  grew  familiar  and  came  to  seem 
the  natural  and  traditional  order  of  things,  not  with 
all  the  fullness  of  understanding  of  later  times,  it 
needed  the  struggles  of  the  seventeenth  century  to 
produce  that,  but  clearly  enough  to  insure  their  per- 
manence. As  compared  with  so  important  a  result 
as  this,  we  cannot  say  that  the  establishment  of  free- 
dom of  debate  and  the  other  privileges  of  Parliament, 
or  of  the  control  of  elections  which  characterize  the 
fifteenth  century,  are  essential  enlargements  of  the 
law  to  which  the  king  was  subject.15  The  age  which 
followed  the  Lancastrian  was  one  of  suspended 
activity,  or  of  reaction,  or  more  accurately  it  was  one 
during  which  Parliament  gained  the  same  degree  of 
control  over  the  ecclesiastical  organization  of  the 
state  which  it  had  already  acquired  over  the  political. 

is  The  practical  importance,  however,  of  a  case  arising  under  these  rights, 
the  case  of  Goodwin  vs.  Fortescue,  at  the  beginning  of  the  reign  of 
James  I.  should  not  be  overlooked.  It  brought  the  king  face  to  face 
with  the  constitution,  and  taught  him  the  existence  of  a  body  of  law 
which  he  could  not  contravene. 

[166] 


THE  GERM  OF  THE  CONSTITUTION 

At  its  beginning  the  answer  of  a  Yorkist  House  of 
Lords  to  Richard  of  York's  claim  to  the  throne  is  a 
constitutional  landmark  of  the  utmost  significance,16 
and  in  many  ways  it  might  be  shown  that  the  English 
Constitution  of  1460  was  of  a  type  new  to  the  world. 
Into  the  details  of  these  later  times  we  do  not  need 
to  go  for  our  present  purpose. 

We  now  return  to  a  more  specific  formulation  of 
our  original  problem:  from  what  source  and  at  what 
time  did  there  enter  English  history  as  an  active  in- 
fluence the  principle  that  there  is  a  body  of  law  above 
the  king  which  he  may  be  compelled  to  obey  if  he  is 
unwilling  to  do  so?  And,  it  may  be  added,  how  did 
there  begin  a  line  of  experimenting  in  the  embodi- 
ment of  this  principle  in  institutional  forms?  It  is 
the  thesis  of  this  book17  that  this  principle  was  derived 
directly  from  feudalism,  and  that  it  was  the  work  of 
the  Great  Charter  of  1215  to  transfer  it  from  that 
system  then  falling  into  decline  to  the  newer  govern- 
mental system  just  beginning  to  be  formed,  and  in  so 
doing  to  give  it  its  first  institutional  expression.  In 
this  fact  we  have,  I  believe,  the  explanation  of  the 
influence  and  significance  of  the  Great  Charter  in 
English  history.18 

16  See  Stubbs,  III.,  section  677;  Rot.  Parl,  V.  376. 

17  See  A.  H.  R.,  V.  650  (1900);  and  The  Political  History  of  England, 
II.  439  (1905). 

is  It  has  been  suggested  that  in  this  opinion  I  have  followed  Professor 
Maitland.  In  one  sense  this  is  true.  My  publication  did  follow  his;  see 
Pollock  and  Maitland,  History  of  English  Law,  first  ed.,  I.  152  (1895). 
But,  what  I  understand  the  suggestion  to  mean,  that  my  view  of  the 

[167] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

That  there  was  in  the  feudal  system  of  things  a 
body  of  law,  of  recognized  right,  which  the  highest 
suzerain,  the  lord  paramount  of  the  realm,  could  not 
violate,  hardly  needs,  I  think,  to  be  proved  to  anyone 

Charter  was  derived  from  his,  is  certainly  not  the  case.  I  have  been 
very  glad  to  find  myself  reaching  the  same  result  as  so  distinguished 
a  scholar,  and  the  fact  has  undoubtedly  given  me  greater  confidence  in 
my  conclusions,  but  those  conclusions  were  entirely  independent,  reached 
by  a  different  road  and  resting  on  a  different  body  of  fact.  My  original 
approach  to  Magna  Carta  was  not  through  English  history  or  law,  quite 
the  reverse;  nor  was  my  present  understanding  reached  by  an  analysis  of 
it  as  primarily  an  English  document.  I  came  to  the  study  of  it  directly 
from  the  study  of  continental  feudal  institutions  and  law  with  which  I 
had  occupied  not  very  abundant  leisure  for  some  years.  Called  upon  for 
class-room  purposes  to  read  the  document  carefully  for  the  first  time 
since  my  special  interest  in  feudalism  had  begun,  I  remember  well  the 
astonishment  with  which  I  recognized  the  fact  that  it  was  practically  pure 
feudal  law  both  in  its  details  and  in  its  underlying  principle.  There 
speedily  followed  the  conclusions  that  England  must  have  been  a  thor- 
oughly feudal  state,  as  I  had  not  before  supposed  it  to  be,  and  that  in 
the  fundamental  principle  of  feudal  law,  which  is  also  the  fundamental 
principle  of  Magna  Carta,  we  have  the  explanation  of  the  influence  of 
that  document  in  English  history  and  the  key  to  the  origin  of  the  limited 
monarchy.  It  was  this  conclusion  which  turned  all  my  interest  to  the 
study  of  early  English  history  to  which  up  to  that  time  I  had  given  no 
attention,  and  it  was  reached  before  I  had  read  the  History  of  English 
Law,  or  to  my  present  recollection  any  other  of  Professor  Maitland's 
writings.  It  led  me  to  their  study.  His  conclusion  appears  to  me  to 
rest  on  an  analysis  of  Magna  Carta  itself,  and  I  do  not  understand  that 
he  ever  fully  appreciated  its  relation  to  feudal  law  in  general,  or  devel- 
oped in  his  thought,  as  he  could  hardly  have  failed  to  do  if  he  had  given 
attention  to  the  point,  the  relation  of  the  fundamental  principle  of 
Magna  Carta  to  the  origin  of  the  constitution,  nor  do  I  know  that  he 
ever  connected  with  it  the  second  half  of  this  principle,  the  right  of 
coercion,  which  is  equally  important  with  the  first.  I  have  stated  these 
facts  so  fully  not  from  personal  reasons  merely,  but  because  it  seems 
to  me  one  method  of  asserting  with  emphasis  that  I  believe  it  to  be 
indispensably  necessary  if  one  would  understand  the  origin  of  the  Eng- 
lish Constitution,  to  understand  first  of  all  the  real  meaning  of  Magna 
Carta  and  the  use  which  it  makes  of  the  fundamental  contract  idea  of 
feudal  law. 

[168] 


THE  GERM  OF  THE  CONSTITUTION 

familiar  with  feudal  law.  Underlying  all  of  feudal- 
ism, practices,  law  and  institutions,  was  the  fact  of 
contract.19  The  feudal  relationship  was  created  by  a 
contract;  it  could  be  created  in  no  other  way.  The 
fact  that  the  terms  of  that  contract  were  often,  prob- 
ably usually,  unwritten  is  of  no  importance.  Homage 
and  fealty  were  the  well-understood  forms  of  making 
such  a  contract,  and  the  custom  of  the  locality  defined 
clearly  to  both  parties  its  terms,  if  no  special  variation 
from  the  ordinary  in  a  given  case  required  special 
definition.  Now  this  fundamental  contract  of  feu- 
dalism was  everywhere  regarded  as  contract  always 
is:  it  bound  both  parties  alike,  not  to  quite  the  same 
things,  but  equally.  It  requires  no  long  study  of  any 
feudal  code  to  see  that  it  all  rests  back  on  a  contract, 
and  a  contract  binding  the  sovereign  as  truly  as  the 

19  No  one,  I  am  sure,  will  suppose  that  in  declaring  Magna  Carta  to  rest 
for  its  justification  on  the  fundamental  contract  of  feudalism,  I  am 
asserting  that  it  was  itself  a  contract  between  the  nation  and  the  king. 
Such  an  interpretation  of  the  Charter  appears  to  me  wholly  wrong.  It 
assumes  the  existence  in  1215  of  a  nation  in  the  later  sense,  long  before 
such  a  thing  had  come  into  being,  and  it  assumes  the  existence  of  a 
political  idea  and  theory  even  more  impossible  to  the  time.  In  saying 
that,  as  a  statement  of  what  the  king  is  bound  to  do  or  not  to  do,  it 
rests  on  the  fundamental  contract  of  feudalism,  I  am  saying  merely  that 
it  is  a  statement  of  feudal  law.  It  was  not  Magna  Carta  but  the  cir- 
cumstances of  the  future  which  gave  to  the  fact  that  there  was  a  body 
of  law  above  the  king  creative  power  in  English  history.  Magna  Carta 
emphasized  the  fact  and  made  the  suggestion  of  the  right  of  enforce- 
ment, in  a  way  never  forgotten,  but  this  was  all  it  did.  Nor  did  feudal 
law  furnish,  except  in  a  few  particulars  and  these  much  transformed, 
the  body  of  law  by  which  the  king  was  finally  bound.  The  great  work 
of  Magna  Carta  was  not  done  by  its  specific  provisions;  the  secret  of 
its  influence  is  to  be  found  in  its  underlying  idea,  the  king  must  keep  the 
law,  and  this  it  is  which  rests  upon  the  feudal  contract. 

[169] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

lowest  vassal.20  So  far  as  this  principle  relates  to  the 
ownership  of  land  it  is  of  no  importance  from  our 
present  point  of  view,  for  private  property  and  royal 
grants  must  be  to  a  degree  secure  in  any  regime.  It 
was  the  peculiarity  of  the  feudal  system  that  it 
brought  under  the  operation  of  this  same  principle 
public  relationships  and  duties  and  nearly  the  whole 
body  of  public  law.  The  vassal  class,  those  who 
entered  into  the  feudal  relationship  and  who  formed, 
while  feudalism  was  at  its  height,  practically  the 
whole  operative  force  of  the  state,  bound  themselves 
by  the  initial  contract  to  certain  public  duties,  finan- 
cial, military,  legislative  and  judicial,  and  to  no  more. 
We  are  here  especially  concerned  with  this  fact  from 
the  suzerain's  side.  Of  the  services  by  which  public 
business  was  carried  on,  he  could  demand  of  the  indi- 
vidual vassal  only  those  which  the  particular  contract 
specified.  The  only  point  of  vagueness  in  that  con- 
tract was  the  obligation  assumed  by  the  vassal  to 
serve  his  lord  with  honor  and  loyalty.  There  was 
nothing  about  this,  however,  which  allowed  the  king 
to  demand  of  the  vassal  without  his  consent  further 
money  payments  than  those  specified,  or  more  mili- 
tary service,  or  in  different  conditions  of  time  or 
place,  or  to  infringe  his  rights  of  private  jurisdiction, 
or  to  subject  him  to  a  different  mode  of  trial  from 
the  usual  feudal,  much  less  to  punish  him  without 

20  On  these  points  in  regard  to  contract  in  feudalism,  see  note  C  at  the 
end  of  the  chapter  (p.  203). 

[170] 


THE  GERM  OF  THE  CONSTITUTION 

trial  no  matter  what  he  had  done.  In  these  particu- 
lars and  others  like  them  every  feudal  sovereign  was 
a  limited  monarch,  and  the  history  of  every  feudal 
state  gives  evidence  of  the  enforcement  of  these  limi- 
tations against  the  king.  This  was  just  as  true  of  the 
strong  Norman  kings  as  of  any  others,21  though  they 
were  the  most  powerful  of  all  feudal  sovereigns,  and 
every  reign  up  to  Magna  Carta  shows  the  existence 
and  effectiveness  of  these  checks.22  Every  one  of  them 
in  some  way  recognized  the  fact  that  there  was  a  body 
of  law  which  he  must  observe.  Particularly  is  this 
the  meaning  of  the  charter  of  Henry  I.  Like  Magna 
Carta  it  contains  very  little  that  is  new,  but  it  rests 
on  the  fact  that  William  Rufus  had  been  doing 
things  which  he  had  no  right  to  do,  if  we  look  at  his 
action  from  the  point  of  view  of  contemporary  feudal 
law  alone,  and  which  the  barons,  therefore,  had  the 
right  to  bind  his  successor  in  terms  not  to  do. 

If  now  we  turn  to  Magna  Carta  we  find  in  the  first 
place  that  the  conditions  which  called  it  into  exist- 
ence were  precisely  of  a  sort  to  demand  the  enforce- 

21  Plehn,  Matheus  Parisiensis,  p.  1,  notes  this  fact,  but  does  not  state 
quite  accurately  the  reason  for  it.    Glanvill,  IX.  8,  states  clearly  enough 
the  general  principles  in  regard  to  the  limitations  upon  the  lord's  right 
of  exaction.    The  passage  refers  directly  to  the  mesne  lord,  but  the  same 
principles  applied  to  the  king. 

22  Interesting  instances  of  this  fact  in  the  case  of  the  stronger  kings  are 
to  be   found  in   the   failure  of  the  demanda   of  William   II.   regarding 
Anselm  in  the  meeting  of  the  curia  regis  at  Rockingham  in  1095,  of  the 
request  of  Henry  II.  for  a  change  in  the  object  of  the  "sheriff's  aid"  at 
Woodstock  in  1163  and  of  the  request  of  Richard  I.   for  the   feudal 
service  in  an  unusual  form  at  Oxford  in  1197. 

[171] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

ment  of  this  fundamental  principle  of  feudalism. 
Looked  at  from  the  point  of  view  of  the  feudal  baron, 
John  had  been  during  the  greater  part  of  his  reign 
frequently  violating  the  feudal  contract.  To  enu- 
merate the  particulars  would  be  to  name  the  larger 
part  of  the  clauses  of  the  Great  Charter,23  but  two 
particulars  seem  to  have  stood  out  to  that  time  as 
especially  wide-reaching  in  their  consequences: 
John's  financial  methods  and  his  disregard  of  judi- 
cial rights.  Of  course  in  neither  of  these  respects  was 
John  an  innovator;  he  was  only  following  in  the  way 
opened  by  his  father  and  brother.  But  circumstances 
had  forced  him  to  go  forward  in  taxation  farther  than 
any  one  before  him  and,  if  this  was  not  so  true  of  the 

23  Magna  Carta  does  not  state  all  the  points  of  which  the  barons  had 
earlier  complained.  It  is  discreetly  silent  on  the  subject  of  military 
service  in  France,  for  instance,  which  they  had  asserted  the  king  wrong- 
fully required.  In  this  they  were  not  right,  and  it  is  some  evidence  of 
the  justice  and  exact  legality  of  the  Charter  that  it  does  not  put  for- 
ward such  a  claim.  The  "unknown  charter  of  liberties,"  to  be  dated 
according  to  Mr.  Prothero  (E.  H.  R.,  1894,  pp.  117-121)  most  prob- 
ably in  January,  1215,  contained  a  clause  limiting  service  abroad  to 
Normandy  and  Brittany.  (E.  H.  R.,  1893,  p.  291;  McKechnie,  p.  569, 
c.  7.)  The  clause  has  the  air  of  a  compromise,  and  a  natural  one,  since 
it  names  the  two  provinces  in  which  many  English  barons  would  have 
immediate  personal  or  family  interests,  and  in  which,  or  in  the  interests 
of  which,  their  service  abroad  had  been  in  earlier  times  usually  ren- 
dered. The  question  at  issue  was  not  a  simple  one,  because  the  ordi- 
nary feudal  law  was  very  apt  to  limit  the  area  within  which  the  military 
service  of  the  vassal  should  be  rendered  on  one  side,  and  on  the  other 
the  English  practice  and  historical  precedents  were  all  against  the 
demands  of  the  barons.  The  subject  was  one  in  which  a  compromise 
might  justly  be  in  order,  but  if  the  clause  in  the  "unknown  charter" 
represents  directly  or  indirectly  some  kind  of  a  baronial  demand,  as  it 
probably  does,  it  was  not  insisted  upon  when  the  charter  was  drawn 
up  in  June,  1215. 

[172] 


THE  GERM  OF  THE  CONSTITUTION 

judicial  system,  the  barons  were  now  able  to  under- 
stand more  clearly  the  result  for  themselves  of  the 
judicial  changes,  and  also  they  might  naturally  con- 
nect with  them,  as  showing  their  logical  tendency, 
John's  habit  of  arbitrary  punishment  without  judicial 
process. 

As  we  look  at  the  issue  between  the  barons  and  the 
king  with  our  understanding  of  later  times,  our  sym- 
pathies may  perhaps  be  mixed.  It  is  easy  enough  for 
us  to  see  that  John  was  at  work  in  the  way  of  the 
future.  The  changes  which  he  was  striving  to  make 
were  inevitable  and  necessary.  The  transformation 
which  he  was  helping  to  carry  through  was  the  trans- 
formation of  the  medieval  machinery  of  government 
into  the  modern.  To  this  extent  we  may  sympathize 
with  him.  But  John  was  carrying  forward  this  work 
decidedly  under  the  influence  of  the  tendency  which 
seems  to  have  been  common  in  decaying  feudalism, 
the  tendency  towards  absolutism.  If  also  we  look  at 
the  matter  strictly  from  the  feudal  point  of  view,  it 
is  impossible  not  to  say  that  the  barons  were  right. 
John's  acts  may  have  been  steps  towards  a  better 
future;  but  some  of  his  methods  of  raising  money  he 
had  no  legal  right  to  employ,  the  interference  with 
private  jurisdiction  by  the  writ  Prsecipe  was  without 
justification,24  and  the  trial  by  their  peers  repeatedly 

24  That  is,  without  justification  in  feudal  law.  As  already  explained,  in 
issuing  the  writ  the  king  acted  on  his  general  right  to  make  justice 
prevail,  and  to  demand  obedience  to  his  writs.  See  Brunner,  Schwur- 
gerichte,  p.  405;  Flach,  Origines  de  I'Ancienne  France,  III.  366,  n.  5.  In 

[173] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

demanded  by  victims  of  his  tyranny,  he  could  not 
justly  refuse.  In  every  particular  touched  upon  in 
Magna  Carta  so  far  as  it  was  a  part  of  the  old  feudal 
law,  the  barons  were  wholly  within  their  rights.25 
They  were  stating  law  by  which  the  king  was  already 
bound,  as  in  his  heart  he  must  have  admitted.26 

But  here  was  the  practical  problem.  The  barons 
knew  well  enough  that  legal  right,  as  the  law  then 
stood,  was  on  their  side,  but  how  was  it  to  be  enforced, 
how  to  be  secured  for  the  future  against  such  a  king? 

other  words  he  found  his  authority  in  an  older  ideal  of  his  office  which 
had  survived  in  some  particulars  and  which,  wherever  acted  on  in  prac- 
tice, was  the  source  of  inconsistencies  and  contradictions  in  the  feudal 
world.  In  this  case  the  fact  should  not  be  overlooked  that  the  king  used 
it  to  deprive  his  vassal  of  a  property  right,  a  source  of  income,  which 
the  feudal  law  affirmed  to  be  his  as  truly  as  his  domain  manors.  That 
the  political  system  from  which  the  right  was  drawn  was  not  merely 
older  but  sounder  and  more  permanent,  has  nothing  to  do  with  the  case. 
By  the  system  which  was  then  ruling  such  matters  and  which  had  ruled 
them  for  generations,  the  act  was  unquestionably  illegal.  Though  mak- 
ing a  different  application  of  the  principle,  Ralph  de  Glanvill  stated  it 
correctly  in  his  decision  in  favor  of  the  abbot  of  Abingdon  when  he  is 
recorded  to  have  said,  nee  dominum  regem  velle  nee  se  audere  contra 
consuetudines  tarn  antiquas  et  justas  aliquatenus  venire  aut  circa  eas 
aliquid  immutare.  Chron.  Abingd.,  II.  298. 

25  It  will  be  noticed  that  some  clauses,  for  example,  clause  25,  are  not 
included  under  this  statement. 

26  As  soon  as  he  was  able  John  denounced  the  Charter  and  procured  its 
annulling  by  the  pope.     From  the  precedents  established  by  his  father 
and  brother  he  was  right  enough  in  doing  so,  but  to  justify  himself  by 
a  real  and  not  a  usurped  right,  he  must  fall  back  on  that  older  con- 
ception of  the  kingly  office,  not  recognized  by  the  feudal  law,  to  which 
I  have  referred  in  note  24.    In  that  conception  of  king  and  state,  there 
was  in  truth  no  room  for  the  principle  on  which  the  barons  acted,  but 
it  was  a  conception  which  had  had  small  share  in  the  world,  outside  infre- 
quent books  of  scholars,  for  more  than  two  centuries.     It  may  be  said 
that  the  right  to  control  the  sovereign  by  force  was  merely  an  appli- 
cation of  the  general  right  of  revolution  which  exists  under  any  govern- 

[174] 


THE  GERM  OF  THE  CONSTITUTION 

Xone  of  his  predecessors  had  been  stronger  than  he, 
none  indeed  had  given  such  an  exhibition  of  strength, 
had  seemed  so  unshakable,  or  had  held  an  unwilling 
nation  in  such  a  grip  of  iron.  If  defeat  abroad  and 
combination  at  home  at  last  placed  him  at  a  disad- 
vantage, how  was  the  recovery  of  his  tyranny  to  be 
prevented?  How  was  the  law  to  be  made  secure 
against  his  arbitrary  will  when  the  combination  was 
broken  up  and  his  strength  restored?  This,  the  one 
urgent  problem  of  the  time,  gives  us  the  explanation 
of  Magna  Carta;  how  to  deal  with  a  king  who  per- 
sistently refused  to  obey  the  law  which  he  was  right- 
fully bound  to  obey  and  whose  promises  could  not 
be  trusted,  how  to  deal  with  him  in  such  form  as  not 
merely  to  secure  incontestable  recognition  of  the  fact 

ment,  or  that  it  was  due  in  successive  cases  to  the  action  of  underlying 
economic  and  social  causes  whose  operation  may  be  stated  in  abstract 
terms.  See  my  Civilization  During  the  Middle  Ages,  p.  99,  n.  1,  and  cf. 
Polit.  Sc.  Quart.,  XXI.  535.  Such  statements  contain  some  degree  of 
truth,  and  in  the  final  narrative  of  human  history  they  will  be  allowed 
due  weight,  but  to  the  present-day  work  of  the  political  historian  they 
offer  nothing  of  value.  They  are  either  equally  true  of  all  cases  what- 
ever their  special  form,  or  they  deal  with  influences  acting  in  so  removed 
a  degree,  through  secondary  or  tertiary  agents,  that  they  tell  us  nothing 
of  what  actually  occurred,  or  of  what  the  actors  in  events  believed.  Nor 
do  such  generalizations  ever  take  account  of  the  external  forms  of  the 
body  of  institutions,  which  condition  to  some  extent,  and  in  their  forms 
record,  advance  or  decline.  Whatever  may  be  the  business  of  the  stu- 
dent of  political  science,  or  of  the  sociologist,  it  is  the  business  of  the 
historian,  in  the  present  stage  of  knowledge,  not  to  deal  with  hidden 
causes,  or  with  abstractions,  but  to  find  out  what  actually  occurred  and 
to  describe  as  accurately  as  possible  the  immediately  accompanying 
forms  and  ideas  and  the  process  o'f  change.  Nor  personally  do  I  believe 
that  it  is  of  value  in  any  science  to  seek  for  ultimate  causes  until  the 
phenomena  are  as  accurately  known  as  possible. 

[175] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

that  he  was  bound  to  obey  the  law,  but  also  an  ac- 
cepted, legal  and  orderly  means  of  forcing  him  to 
obey  if  he  should  break  his  promises.27 

This  is  the  explanation  of  Magna  Carta  so  far  as 
that  is  given  by  the  historical  situation  which  pro- 
duced it.  The  written  document  gives  us  the  same 
result.  It  was  suggested  of  course  by  the  charter  of 
Henry  I.,  and  when  the  archbishop  produced  a  copy 
of  that  charter  its  special  fitness  for  the  occasion  must 
have  been  clearly  seen.  Once  more,  as  by  the  earlier 
king,  the  law  had  been  violated,  and  once  more  it  was 
necessary  to  secure  a  pledge  that  those  violations 
should  cease.  This  gives  us  the  body,  the  greater 
part,  of  the  Charter.  But  in  one  point  the  case  dif- 
fered from  that  of  Henry  I.  and  in  one  point  the 
Great  Charter  goes  beyond  the  earlier  one.  The 
king  from  whom  the  pledge  was  demanded  was  the 
king  who  had  violated  the  law.  If  the  charter  of 
Henry  I.  had  been  forced  from  William  Rufus  by 
insurgent  barons,  it  probably  would  not  have  stopped 
where  it  did.  Then,  as  in  1215,  the  difficult  question 
would  have  forced  itself  forward  how  to  compel  the 
king  to  keep  his  pledge  if  he  should  again  violate  the 

27  Examined  from  the  point  of  view  of  those  who  framed  it,  Magna 
Carta  will  be  found  to  contain  three  great  provisions  or  sets  of  pro- 
visions. First,  no  taxation  of  the  feudal  community  without  its  consent, 
beyond  the  regular  aids.  Second,  no  modification  or  violation  of  the 
law  by  the  arbitrary  action  of  the  king;  and  third,  should  the  king  be 
determined  to  free  himself  from  the  law,  the  right  of  forcing  him  to 
submit  to  it  by  civil  war  and  if  necessary  by  temporary  deprivation  of 
the  royal  power.  In  all  these  respects  it  exactly  fits  the  case  of  John. 

[176] 


THE  GERM  OF  THE  CONSTITUTION 

law.  To  this  question  the  barons  of  John  found  an 
answer  where  they  found  the  right  to  proceed  origi- 
nally against  the  king,  and  to  make  the  specific  de- 
mands which  they  embodied  in  the  Charter,  that  is, 
in  the  feudal  law. 

We  should  be  led,  I  believe,  to  the  same  explana- 
tion of  Magna  Carta  as  a  document,  if  we  knew  noth- 
ing of  the  charter  of  Henry  I.  The  key  to  its  mean- 
ing and  to  the  right  on  which  the  barons  founded  it, 
is  clause  61.  Of  that  clause  there  are  two  questions 
to  be  asked :  first,  exactly  what  was  it  intended  to  do ; 
and  second,  on  what  ground  of  right  did  it  rest.  In 
the  first  place,  the  general  purpose  of  the  clause  lies 
plainly  on  the  surface.  It  was  to  compel  the  king  to 
keep  the  engagements  he  had  entered  into  in  the 
Charter.  John  had  agreed  to  be  bound  by  certain 
statements  of  law,  mostly  old,  some  new,  embodied 
in  the  earlier  clauses.  In  ordinary  cases  this  would 
be  enough.  The  king's  promise  in  the  form  of  a  legal 
grant  would  be  all  that  would  be  asked  for.  It  is 
clear  that  John's  promise  was  not  trusted.  The 
question  how  he  could  be  forced  to  keep  it  would 
arise  as  soon  as  men  began  to  consider  the  drawing 
up  of  a  charter  at  all.  It  is  possible  that  it  was  this 
question  which  led  to  the  withdrawal  of  the  northern 
barons,  recorded  by  the  Barnwell  chronicler.28  Their 
spirit  was  such  that  they  may  very  likely  have  said: 
it  is  utterly  useless  to  try  to  bind  the  king  with  any 

28  Walter  of  Coventry,  II.  222. 

[177] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

sort  of  agreement;  the  experiment  is  not  worth 
making.  At  any  rate  in  the  case  of  John  the  question 
of  compelling  him  to  keep  his  promise  would  be  as 
immediate  and  pressing  as  any  arising  about  the 
Charter.  It  is  clear  that  in  this  difficulty  the  final 
appeal  against  the  king  would  be  to  that  which  had 
originally  forced  the  Charter  from  him — to  insur- 
rection. But  obviously  also  this  should  be  only  a  final 
appeal.  The  thing  to  be  done  was  to  devise  some 
method  of  enforcing  the  provisions  of  the  Charter, 
when  the  king  proved  unwilling,  which  would  secure 
the  rights  granted,  to  which  the  king  would  agree,  and 
which  would  involve  insurrection  only  as  a  last  resort. 
That  is  the  specific  object  of  the  clause — to  set  up 
machinery  which  will  take  hold  of  abuses  when  the 
king  refuses  to  reform  them,  enforce  and  protect  the 
rights  of  the  persons  interested,  and  do  so  as  recog- 
nized machinery  of  the  state  without  a  resort  to  force. 
It  is  this  which  gives  it  its  institutional  character  and 
makes  it  the  first  in  the  line  of  experiments  looking 
towards  a  constitutional  limited  monarchy. 

The  real  nature  and  purpose  of  the  clause  is  to  be 
seen  from  the  way  it  would  have  worked  in  practice. 
To  four  barons  of  the  twenty-five,  the  individual  was 
to  bring  his  complaint  of  some  wrong  which  he  could 
not  get  corrected.  Plainly  then  the  four  must  decide 
whether  the  case  was  one  of  real  abuse  and  one  in- 
tended by  the  Charter  to  fall  within  their  supervision. 
That  is  to  say,  the  clause  conferred  upon  them  a  judi- 

[178] 


THE  GERM  OF  THE  CONSTITUTION 

cial  function,  which  was  really  a  prerogative  of  the 
king's,  to  determine  whether  the  law  had  been  violated 
or  not  in  a  given  case,  and  to  grant  redress.  If  the 
four  found  an  abuse,  they  carried  the  case  to  the 
twenty-five,  when  of  course  their  decision  was  subject 
to  review.  If  the  twenty-five,  or  a  majority  of  them, 
agreed  with  the  four,  they  called  the  attention  of  the 
king  to  the  abuse  and  required  him  to  redress  it  within 
forty  days.  This  is  all  the  king  had  to  do  with  the 
case.  He  had  no  voice  in  the  decision.  His  judicial 
prerogative  of  determining  violations  of  the  law  and 
initiating  their  correction  was  taken  away  from  him, 
and  he  was  reduced  to  the  function  of  executing  the 
judgments  of  a  court  not  his  own.29  This  was  more- 
over under  the  sanction  of  civil  war.  If  the  king  still 
refused  redress  the  last  resort  was  insurrection,  which 
is  declared  legal,  and  defined  as  limited  in  character, 
and  temporary  only.  Permanent  deposition  of  the 
sovereign  was  carefully  excluded.  A  clumsy  arrange- 
ment, impossible  to  operate  with  success  no  doubt,  but 
we  should  never  forget  that  it  was  the  first  step  ever 
taken  in  history  towards  what  we  know  as  a  limited 
monarchy,  towards  the  creation  of  a  body  of  consti- 
tutional law  which  the  king  must  obey  under  sanction 
of  insurrection,  and  of  machinery  for  its  enforcement 
in  such  a  way  as  to  make  insurrection  only  a  last 
appeal.  Considering  that  the  men  of  1215  had  no 

29  The  judicial   function  of  the  twenty-five  barons  is  equally  clear  in 
clauses  52  and  55  of  the  Charter. 

[179] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

precedent  to  go  upon,  no  model  of  any  such  machinery 
to  follow,  no  literary  expression  of  such  ideas,  no 
theorizing  about  such  procedure,  they  did  very  well. 
The  scheme  was  conceivably  workable,  practice  would 
no  doubt  have  disclosed  fatal  defects,  but  practice  was 
exactly  what  nobody  had  as  yet.  The  character  of 
the  scheme,  however,  is  clear.  It  was  a  method  which 
it  was  hoped  would  secure  the  enforcement  of  the 
Charter  by  putting  into  operation  through  others  a 
function  naturally  belonging  to  the  king  but  which 
he  refused  to  exercise  for  the  ends  of  justice,  under 
the  ultimate  sanction  of  war.  As  I  have  said  of  the 
plan  in  general,  it  was  not  finally  to  be  the  way  of  the 
constitution.  Transfer  to  others  of  the  king's  prerog- 
atives, definite  formulation  of  sanctions,  legalization 
of  insurrection,  these  were  not  to  be  in  the  end  consti- 
tutional. But  until  Parliament  had  come  into  exist- 
ence and  had  so  far  developed  that  it  could  begin  to 
exercise  in  reality  prerogatives  to  which  it  laid  no 
claim  in  theory,,  until  it  could  begin  the  long  process 
of  transferring  the  real  sovereignty  of  the  state  to 
itself,  expedients  of  this  kind  were  the  only  possible 
means  of  enforcing  law  and  limitations  upon  the  king, 
and  it  was  in  them  that  the  constitutional  monarchy 
had  its  origin. 

Of  the  second  question,  on  what  ground  of  right 
did  clause  61  rest,  the  answer  is  equally  plain  and  has 
already  been  made.  The  clause  rested  on  the  same 
ground  of  right  as  the  insurrection  which  had  forced 

[180] 


THE  GERM  OF  THE  CONSTITUTION 

the  Charter  from  the  king.  In  the  machinery  of  the 
court  of  twenty-five  and  in  the  modified  and  tempor- 
ary right  of  insurrection  which  it  recognized,  the 
clause  falls  within  the  limits  of  the  larger  right.  None 
of  the  insurgent  barons  would  have  admitted  for  a 
moment  that  he  was  guilty  of  treason,  nor  could  the 
king,  with  due  regard  to  the  law,  have  proved  him  to 
be  by  the  mere  fact  of  insurrection.30  It  would  be 

30  On  the  feudal  right  of  insurrection  and  on  other  rights  which  the 
charter  emphasizes,  see  Dodu,  Hiatoire  des  Institutions  Monarchiques 
dans  le  Royaume  Latin  de  Jerusalem  (1894),  pp.  159-171.  This  book 
is  an  admirable  introduction  to  the  study  of  the  Magna  Carta.  In  some 
points  of  detail  at  least  the  feudal  situation  in  England  was  more  closely 
parallel  to  that  in  the  Kingdom  of  Jerusalem  than  to  that  in  France. 
Feudal  law  may  be  said,  indeed,  to  have  recognized  with  peculiar  clear- 
ness the  right  of  the  vassal  to  make  war  on  his  suzerain  when  that 
suzerain  was  the  lord  paramount,  because  there  was  in  that  case  no 
higher  authority  to  which  appeal  could  be  made.  It  will  be  noticed 
also  that  deposition  was  the  only  form  which  the  extreme  penalty  could 
take,  which  in  the  case  of  the  mesne  lord  was  confiscation,  that  is,  the 
raising  of  the  rear  fief  to  be  an  immediate  fief.  See  the  references  in 
The  Political  History  of  England,  II.  439,  n.  1.  One  of  the  most  interest- 
ing statements  of  this  righj:  is  that  in  the  £tabl.  de  8.  Louis  (ed.  Viollet), 
II.  75  (book  I.,  c.  LIIL),  because  it  covers  the  duty  of  the  rear  vassal. 
The  lord  says  to  his  liege  man:  "Come  with  me  because  I  wish  to  make 
war  on  the  king,  my  seignior,  qiti  m'a  ve6  le  jugemant  de  sa  cort."  The 
man  answers  that  he  will  go  to  the  king  and  find  out  if  the  fact  is  as 
stated.  If  it  is,  he  returns  to  his  lord.  Et  se  il  ne  s'an  voloit  aler  o  lui, 
il  en  perdroit  son  fid  par  droit.  It  will  be  noticed  that  the  case  supposed  in 
the  passage  italicized  above  as  calling  the  right  into  action  is  one  of  the 
chief  grounds  of  complaint  against  John.  The  point  with  regard  to  treason, 
as  a  result  in  his  case  of  the  reverse  process,  the  king's  diffidatio  of  him, 
is  clearly  made  in  1233  by  Richard  Marshal  in  argument  with  the  king's 
representative.  M.  Par.,  III.  257-258,  and  cf.  274-275.  See  also  the  case 
of  the  earl  of  Albemarle  in  the  annals  of  Dunstable,  Ann.  Mon.,  III. 
64;  the  plea  of  Ganelon,  Chanson  de  Roland,  348  (ed.  Gautier),  cited  by 
Bigelow,  Procedure,  p.  287,  n.  3;  and  Waitz,  Z>.  V.  O.,  VI.  100,  n.  3.  The 
regularity  of  the  diffidatio  served  upon  him  is  at  least  tacitly  admitted 
by  John  in  receiving  the  homage  of  the  barons  after  the  Charter  had 

[181] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

necessary  for  him  to  prove  that  there  was  no  legal 
ground  for  the  diffidatio  which  had  been  served  upon 
him.  There  are  indications  which  seem  to  imply  that 
between  1210  and  1215  there  was  some  feeling  about 
in  the  minds  of  those  who  were  preparing  to  oppose 
the  king's  tyranny  for  some  legal  ground  of  action 
against  him.  The  theory  of  the  old  elective  mon- 
archy, which  had  been  perhaps  revived  by  the  ques- 
tion of  Arthur's  title,  seems  to  have  been  thought  of. 
This  probably  accounts  for  the  tradition  about  Arch- 
bishop Hubert's  speech  at  the  coronation  of  John, 
which  Louis  adapted  to  his  own  use  in  his  manifesto 
of  1216,  and  which  Matthew  Paris  recorded,  prob- 
ably more  nearly  in  its  original  form.31  The  coronation 
oath  seems  also  to  have  suggested  itself  as  a  means 
of  control,  and  this  fact  may  possibly  account  for  the 
form  of  oath  which  was  demanded  of  John  after  the 
removal  of  the  papal  censures  in  1213.32  But  how- 
been  agreed  to.  See  his  writ  which  states  that*  he  had  made  peace  with 
the  barons  at  Runnymede,  on  Friday,  June  19,  ita  quod  eorum  homagia 
eodem  die  ibidem  cepimus,  Rymer,  I.  133.  But  however  regular  in  feudal 
law  the  action  of  the  barons  may  have  been,  the  problem  presented  to 
them  by  the  situation  could  not  be  solved  by  trusting  to  a  series  of 
individual  diffidationes,  nor  even  to  what  would  be  the  most  that  could 
be  hoped  for  under  the  law  as  it  stood,  a  series  of  unconnected  alliances 
among  the  barons  formed  to  meet  special  cases  as  they  arose.  They 
desired  permanent  security,  some  means  of  holding  the  king  steadily 
to  the  law.  Such  a  state  of  things  the  law  had  not  provided  for,  and 
could  not;  it  could  not  consider  the  case  of  a  king  persistently  unfaithful 
to  his  obligations.  Hence  arose  the  most  original  feature  of  the  Charter, 
the  commission  of  twenty-five  barons. 
Sl  Rymer,  I.  140;  M.  Par.,  II.  454-455. 

&  Roger  of  Wendover  (ed.  Coxe),  III.  260,   (ed.  Hewlett),  II.  81;  M. 
Par.,  II.  550. 

[182  J 


THE  GERM  OF  THE  CONSTITUTION 

ever  it  may  have  been  with  regard  to  such  specula- 
tions, when  the  time  for  action  came  they  were  all 
fortunately  dropped,  and  the  baronage  in  insisting 
upon  the  king's  feudal  obligations  fell  back  upon  the 
natural  and  simpler  feudal  right  of  appeal,  the  diffi- 
datio  and  its  accompanying  right  of  insurrection. 
This  feudal  principle  accounts  fully  for  the  clause, 
and  it  is  the  only  source  from  which  its  justification 
can  have  come.  Had  the  barons  acted  on  any  other 
ground  of  right  existing  at  the  time,  like  election  or 
the  coronation  oath,  the  clause  must  have  taken 
another  form. 

The  body  of  Magna  Carta  and  clause  61  constitute 
together  the  first  inclination  of  the  constitution 
towards  a  limited  monarchy  and  mark  the  point  of 
time  before  which  no  tendency  in  that  direction  can  be 
found,  the  one  as  insisting  that  there  is  a  body  of  law 
which  the  king  is  bound  to  observe,  the  other  as  affirm- 
ing that  the  community  of  the  ruled  has  the  right  to 
set  up  machinery  to  enforce  the  king's  obligation, 
and,  if  this  proves  insufficient,  to  levy  war  upon  him. 
It  is  a  beginning  only,  as  yet  incomplete.33  The  body 

33  The  Charter  itself,  as  has  been  said,  determined  nothing.  All  depended 
upon  the  interpretation  and  application  which  should  be  given  it  in  the 
future,  and  if  the  opportunity  to  put  it  into  form  depended  upon  the 
accident  of  a  king's  character  so  also  did  its  position  in  the  future. 
Had  a  king  like  Henry  II.  or  Edward  I.,  or  even  like  John,  reigned  in 
England  during  the  fifty  years  which  followed  the  death  of  John,  Magna 
Carta  might  have  made  more  difficult,  but  it  would  not  have  made  im- 
possible, the  completion  of  the  work  which  John  had  begun  in  the  early 
years  of  his  reign.  Such  a  king  might  easily  have  thrown  the  Charter 
into  the  background,  as  did  Henry  I.  in  the  case  of  his  charter,  have 

[183] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

of  law  contains  very  little  of  that  to  which  the  king 
was  subject  in  1460;  the  machinery  of  enforcing  it  is 
less  elaborate  and  perfected  than  that  of  1258  or 
1310;  the  method  of  protecting  the  constitution 
against  the  king  is  quite  different  from  that  of  the 
seventeenth  century.  But  it  contains  in  germ  all  that 
followed;  from  it  the  whole  constitution  unfolded. 
Now  this  beginning  is  in  the  feudal  system.  Before 
1215  in  the  history  of  English  institutions,  general 
as  distinguished  from  local,  lies  nothing  but  the 
feudal  system,  modified  only  in  the  direction  of  a 
more  absolute  monarchy.  The  two  fundamental 
principles  of  the  constitution  which  Magna  Carta 
declared  were  both  fundamental  principles  of  feu- 
avoided  any  repetition  or  ratification  of  it,  and  have  established  a 
series  of  precedents  of  royal  action  without  reference  to  the  law  which 
it  would  have  been  very  difficult  to  overcome.  The  events  of  the  months 
immediately  following  the  granting  of  the  Charter  make  this  certain, 
and  while  the  attempt  to  enforce  the  principles  of  Magna  Carta  by 
civil  war  and  deposition  before  the  death  of  John  was  of  the  greatest 
value  as  a  precedent  it  was  too  inconclusive  to  determine  the  future. 
Of  far  greater  value  were  the  precedents  established  in  the  reign  of 
Henry  III.,  carrying  the  right  of  controlling  the  king  by  force  far 
past  the  middle  of  this  century  of  transition  and  making  it  a  permanent 
element  in  the  new  conception  of  the  state  then  forming  in  England. 
As  a  result,  the  machinery  of  royal  prerogative  action  went  on  to 
develop  as  machinery  for  performing  the  details  of  government  busi- 
ness, but  its  transformation  into  the  basis  of  a  constitutional  abso- 
lutism was  checked  by  the  revival  and  permanent  establishment  of  the 
feudal  ideal  of  the  relationship  between  lord  and  man,  soon  to  be 
changed  into  that  between  sovereign  and  subject.  In  the  extraordinary 
prerogative  courts  of  the  Tudor  period,  there  was  a  revived  possibility 
of  a  constitutional  absolutism,  but  the  Tudors  did  not  press  their  advan- 
tage, such  a  result  was  probably  never  intended,  and  all  possibility  of  it 
was  destroyed  in  the  next  age. 

[184] 


THE  GERM  OF  THE  CONSTITUTION 

dalism  and  were  drawn  directly  from  it  in  1215.  The 
origin  of  the  English  limited  monarchy  is  to  be  sought 
not  in  the  primitive  German  state,  nor  in  the  idea  of 
an  elective  monarchy  or  a  coronation  oath,  nor  in  the 
survival  of  institutions  of  local  freedom  to  exert  in- 
creasing influence  on  the  central  government.  Though 
all  these  were  contributary,  combined  they  could  not 
alone  have  produced  the  result.  The  principle  which 
moulds  and  shapes  all  elements  into  the  great  result 
came  from  feudalism. 


[185] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

NOTE  A.     IDEAL  FEUDALISM  IN  ENGLAND 
(Page 


PROFESSOR  MAITLAND  in  his  Constitutional  History,  pp.  161- 
164,  argues  that  "that  ideal  feudalism  of  which  we  have  spoken, 
an  ideal  which  was  pretty  completely  realized  in  France  during 
the  tenth,  eleventh,  and  twelfth  centuries,  was  never  realized  in 
England."  He  enumerates  six  "limitations  which  are  set  in  this 
country  to  the  development  of  what  can  properly  be  called  a 
feudal  system." 

That  peculiarities  exist  in  the  feudalism  of  England,  as  we 
see  it  in  practical  operation,  it  would  be  absurd  to  deny.  That 
these  peculiarities  are  due  to  limitations  upon  an  ideal  develop- 
ment of  feudalism  is  also  true,  if  we  mean  feudalism  as  popu- 
larly understood,  the  apotheosis  of  the  local  and  individual,  a  non- 
national,  separatist  feudalism.  But  if  by  feudalism  we  mean  the 
institutional  system  proper,  the  customs  and  legal  principles  by 
which  many  private  business  relations  were  regulated,  and  nearly 
all  public  business  was  carried  on  from,  let  us  say,  the  middle 
of  the  eleventh  to  the  middle  of  the  thirteenth  century;  and  if 
by  an  ideal  feudalism  we  mean  a  development  of  this  system 
from  the  fundamental  principles  of  feudalism  to  what  these 
would  logically  imply,  then  it  is  by  no  means  so  certain  that  the 
peculiarities  of  Anglo-Norman  feudalism  are  due  to  any  limita- 
tions set  to  such  a  development.  It  would  be  more  nearly,  though 
not  quite  accurate  to  say  that  they  are  due  instead  to  the  very 
fact  that  the  development  is  logical. 

If  we  consider  in  detail  the  six  instances  named  by  Maitland 
as  limitations  on  such  an  ideal  development  in  England,  what  I 
have  in  mind  may  seem  more  clear. 

1.  "First  and  foremost,  it  never  became  law  that  there  is  no 
political  bond  between  men  save  the  bond  of  tenure."  What  is 
meant  by  this  is  the  Norman  reservation,  in  the  rear  vassal's 
oath  to  his  lord,  of  fealty  to  the  duke  or  king,  and  the  statement 
is  supported  by  a  reference  to  the  Salisbury  oath  in  1086.  Such 

[186] 


THE  GERM  OF  THE  CONSTITUTION 

a  reference  must  imply  an  interpretation  of  that  requirement 
which  I  believe  to  be  incorrect.  There  was  nothing  anti-feudal, 
or  non- feudal,  about  the  Salisbury  oath,  or  the  Norman  require- 
ment in  general.  What  happened  at  Salisbury  was  only  what  is 
described  more  fully  and  clearly  as  the  result  in  Scotland  in 
1175  of  the  treaty  of  Falaise  by  which  the  Scottish  king  became 
the  vassal  of  Henry  II.  All  the  Scottish  rear  vassals  were  called 
upon  at  once  to  take  the  oath  of  fealty  to  their  immediate  suze*- 
rain's  new  overlord.  See  Gesta,  I.  96.  The  requiring  of  this 
oath  seems  also  to  have  been  alleged  by  Henry  II.  as  the  reason 
of  his  call  for  the  cartae  of  1166,  Red  Book  of  the  Exchequer,  pp. 
412,  277.  Cf.  Esmein,  Cours  Elementaire,  p.  193,  n.  2  (1898), 
and  c.  8  of  the  edict  of  Frederick  I.  of  1158,  Mon.  Germ.  Hist., 
Leges,  Sectio  IV.,  Tom.  I.  (4°),  p.  244,  Libri  Feudorum,  II. 
54  (55).  The  paramount  duty  of  the  rear  vassal  to  the  over- 
lord, if  he  is  in  the  right,  is  fundamental  in  feudalism,  and  if  he 
is  not  in  the  right,  even  the  immediate  vassal's  oath  of  fealty 
was  in  practice  not  binding.  See  Waitz,  Ferfassungsgeschichte, 
VI.  100,  n.  3,  and  it  was  no  more  so  regarded  in  England  than 
anywhere  else.  It  should  be  noticed  that  the  passage  cited  in 
n.  30,  p.  181,  from  the  Etablissements  de  Saint  Louis  clearly 
recognizes  this  duty  of  the  rear  vassal.  English  feudalism  dif- 
fered from  that  of  most  other  countries  in  the  fact  that  this 
obligation  was  expressed  in  the  feudal  forms  in  use,  but  it  did 
not  differ  in  the  fundamental  principles  themselves.  Wherever 
in  practice  the  fealty  of  the  rear  vassal  to  his  immediate  suzerain 
excludes  all  obligation  to  his  overlord,  the  fact  is  due  to  an 
exaggeration  of  local  independence  and  is  far  from  being  an  evi- 
dence of  the  logical  development  of  the  system  as  a  whole.  The 
Norman  retention  of  the  earlier  more  general  practice  (see,  for 
example,  Luchaire,  Hist.  Inst.  Mon.  (1891),  II.  28)  of  the 
formal  reservation  of  allegiance  was  no  doubt  at  once  a  result 
of  the  greater  power  of  the  lord  paramount  and  an  element  of  it, 
but  it  cannot  be  adduced  as  evidence  that  Anglo-Norman  feudal- 
ism was  not  "ideal."  In  the  meaning  given  the  term  above,  it 
was  more  truly  ideal  than  the  different  practice  found  elsewhere. 

[187] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

2.  "English  law  never  recognizes  that  any  man  is  bound  to 
fight  for  his  lord."  This  is  a  somewhat  broader  statement  of  one 
aspect  of  the  first  point,  and  the  fact  stated  is  to  be  accounted 
for  in  the  same  way.  The  emphasis  in  the  paragraph  is  on  the 
expression  of  such  a  duty  in  legal  form,  but  I  doubt  if  it  can  be 
found  expressed  as  an  unqualified  duty  in  any  law  code  which 
was  in  any  sense  general.  See  Libri  Feudorum,  II.  c.  28. 
It  certainly  was  not  so  expressed  in  the  passage  in  French 
law  referred  to  by  Maitland — the  passage  cited  in  the  last 
paragraph  above,  where  it  should,  I  think,  belong,  as  bear- 
ing rather  on  the  relation  of  the  rear  vassal  to  the  over- 
lord than  on  his  duty  to  support  his  immediate  lord  in  other 
quarrels.  Surely  in  writing  this  paragraph  Maitland  overlooked 
Glanvill,  IX.  1,  6,  which  comes  as  near  to  a  statement  of  this 
duty  as  any  that  will  easily  be  found,  and  which  certainly  does 
not  refer  to  a  conflict  with  an  overlord.  Whatever  may  be  true 
of  the  law,  Maitland  recognizes  that  the  facts  in  England  come 
nearer  to  ideal  feudalism,  as  he  uses  the  term,  than  the  law  would 
imply.  Still  it  must  be  admitted  that  in  the  relative  frequency 
of  private  war,  in  local  disintegration,  and  in  the  superior  alle- 
giance of  the  rear  vassal  to  his  immediate  lord,  Anglo-Norman 
feudalism  differed  more  widely  in  surface  appearance  from  the 
feudalism  of  France  than  in  any  other  respects.  If  we  think  of 
feudalism  as  popularly  understood,  undoubtedly  these  differences 
make  English  feudalism  seem  to  depart  from  a  logical  ideal.  So 
much  is  this  the  case  that  it  was  the  fashion  a  generation  ago  to 
account  for  the  difference  by  supposing  a  conscious  modification 
by  William  the  Conqueror  of  ordinary  feudal  arrangements  with 
the  deliberate  purpose  of  preventing  the  development  in  England 
of  the  sort  of  feudalism  with  which  he  was  familiar  on  the  conti- 
nent. This  interpretation  of  his  acts  is  now  generally  abandoned. 
But  it  was  beyond  all  question  the  unusual  royal  power  and  the 
constant  high  centralization  (except  in  a  reign  like  Stephen's) 
which  prevented  any  results  in  England  from  that  tendency  to 
disintegration  which  seems  entirely  natural  and  logical  when  the 
natural  relations  between  vassal  and  suzerain  are  disturbed  by 

[188] 


THE  GERM  OF  THE  CONSTITUTION 

any  weakness  of  the  latter.  Whether  there  was  not  in  England 
so  strong  a  royal  power  that  this  normal  balance  was  disturbed 
to  some  extent  in  the  opposite  direction;  whether  there  was  not 
in  some  particulars  less  local  independence  than  a  logical  feu- 
dalism would  allow,  I  am  not  now  prepared  to  say.  If  there  was, 
I  think  that  the  disturbance  was  not  great,  the  balance  was  far 
more  evenly  held  than  in  most  feudal  countries;  and  that  evi- 
dence of  it  is  to  be  found  not  so  much  in  military  matters  as  in 
private  jurisdictions.  Serious  interference  with  the  local  inde- 
pendence which  a  logical  feudalism  would  allow  was  potential 
rather  than  real,  I  feel  sure.  In  most  matters  it  does  not  show 
itself  in  practice.  It  begins  to  be  dangerous  to  feudalism  proper 
with  the  changes  of  the  reign  of  Henry  II.,  and  these  changes 
led  to  a  reassertion  of  feudalism  which,  so  far  as  general  prin- 
ciples are  concerned,  was  permanently  successful,  and  so  far  as 
details  are  concerned,  temporarily.  It  could  not  be  permanently 
successful  in  details  because  the  social  and  economic  forces  which 
were  undermining  the  feudal  system  were  too  strong  to  be  held 
in  check.  As  to  military  matters  of  which  Maitland  is  chiefly 
speaking  in  this  paragraph,  I  greatly  doubt  if  the  actual  evi- 
dence sustains  the  general  belief  concerning  the  practical  effect 
of  the  Norman  reservation  of  allegiance.  The  test  of  such  a 
political  expedient  would  come  when  the  mesne  lord  proposed  to 
resist  the  king  by  force,  and  I  doubt  if  there  was  a  baronial  insur- 
rection in  Norman  or  Angevin  England  in  which  the  rear  vassals 
did  not  stand  by  their  immediate  lords  in  overwhelming  majority. 
That  certainly  was  the  case  in  the  rebellion  of  Richard  Marshal 
in  1233  and  in  those  against  William  II.  and  Henry  I.  at  the 
beginning  of  their  reigns.  No  insurrection  could  otherwise  have 
been  at  all  formidable.  There  are  a  number  of  interesting  spe- 
cial instances  the  bearing  of  which  has  been  generally  overlooked. 
For  example:  Lanfranc's  letter  to  William  I.  on  the  capture  of 
Norwich  castle  in  1075  (Epist.  38,  Opera.  Ed.  Giles,  I.  57) 
shows  clearly  that  the  castle  had  been  defended  against  the  king's 
forces  by  vassals  of  Ralph  Guader's,  who  had  received  lands  in 
England,  and  implies  that  they  obtained  terms  more  easily  and 

[189] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

better  terms  than  those  who  were  serving  him  for  pay.  In  Henry 
I.'s  great  stroke  for  power  at  the  beginning  of  his  reign,  in  his 
attack  on  Robert  of  Belleme,  he  seems  to  have  recognized  in  much 
the  same  way  the  rear  vassal's  duty  of  fealty  to  his  lord.  The 
garrison  of  Arundel  castle  was  granted  a  truce  to  send  word  to 
Robert  of  their  straits  and  to  ask  for  assistance  or  permission  to 
surrender,  according  to  a  not  infrequent  feudal  custom.  Robert 
eos  a  promissa  fide,  quia  impos  erat  adjutorii,  absolvit.  Orderic 
Fitalis,  IV.  170-171.  Both  Roger  of  Wendover  and  Matthew 
Paris  (M.  Par.,  III.  273-279)  clearly  regard  the  action  of 
Geoffrey  Marsh  and  other  vassals  of  Richard  Marshal's  in  Ire- 
land in  assisting  in  his  overthrow  as  treason,  especially  detest- 
able perhaps  because  of  the  manner  of  their  action,  but  there  is 
no  word  here  or  in  any  portion  of  the  account  of  Richard's  rebel- 
lion of  any  obligation  of  his  vassals  to  the  king.  For  an  instance 
in  Normandy  in  which  Henry  I.,  having  captured  the  revolted 
Count  Waleran  of  Meulan  and  some  of  his  knights,  punished  rear 
vassals  who  had  performed  homage  to  him  for  their  support  of 
their  lord,  see  Ord.  Vital.,  IV.  459-461.  Is  there  any  instance  in 
which  a  rear  vassal  holds  himself  bound  to  the  king  as  against 
his  immediate  lord  because  of  his  reserved  allegiance  with  what 
seems  general  approval?  I  do  not  at  present  know  of  any.  I 
am  disposed,  however,  to  admit  the  possibility  of  some  slight 
overemphasis  of  the  suzerain's  side  of  the  feudal  relationship 
before  the  reign  of  Henry  II.,  and  potentially  at  least  of  much 
after  his  reforms. 

3.  "Though  the  military  tenures  supply  the  king  with  an 
army,  it  never  becomes  law  that  those  who  are  not  bound  by  tenure 
need  not  fight."  Nor  did  it  in  any  feudal  country  or  in  any  feudal 
barony.  Military  service  by  the  non-feudal  freeman  was  not 
common  anywhere,  perhaps  more  so  in  England  than  generally, 
but  war  was  a  matter  of  self-defense  and,  while  the  vassal  was 
regarded  as  having  a  special  duty  to  fight,  his  duty  was  never 
considered  in  law  to  exclude  that  of  others.  It  should  be  remem- 
bered that  military  tenure  was  not  necessary  to  the  existence  of 
the  feudal  relationship.  On  the  military  service  of  the  non-feudal 

[190] 


THE  GERM  OF  THE  CONSTITUTION 

classes  in  general  see  the  Revue  Historique,  XLIV.  313-327,  and 
LXI.  144-145;  Guilhiermoz,  Noblesse,  pp.  289-296;  H.  See, 
Seances  de  I'Academie,  CLI.  519-520  (1899);  Viollet,  tidbl.  de 
St.  Louis,  I.  174;  II.  93;  III.  350;  it  is  doubtful  if  Maitland 
would  later  have  stated  this  as  a  peculiarity  of  England.  See  P. 
and  M.,  I.  255-256.  So  far  as  the  Assize  of  Arms  is  concerned, 
to  which  Maitland  refers,  the  fact  should  not  be  overlooked  that 
this  measure  was  immediately  imitated  by  Philip  II.  of  France 
and  by  the  count  of  Flanders.  See  Gesta,  I.  270. 

4.  "Taxation  is  not  feudalized,"  that  is,  taxation  which  is 
non-feudal  does  not  permanently  disappear.  Some  difference 
between  England  and  other  feudal  countries  in  this  respect  did 
exist,  due  undoubtedly  to  the  greater  power  of  the  sovereign. 
The  fact  should  not  be  overlooked,  however,  that  from  the  death 
of  Henry  I.  to  the  reign  of  Richard  there  is  no  non-feudal  taxa- 
tion of  any  real  importance.  It  was  the  new  constitutional  abso- 
lutism which  Henry  II.  had  created  that  was  able  to  establish, 
or  revive  if  one  prefers  that  word,  a  non-feudal  taxation  which 
would  have  become  an  important  feature  of  the  new  constitution 
if  it  had  been  allowed  to  develop  uninfluenced  by  a  feudal  reac- 
tion. It  should  be  noticed  also  that  this  non-feudal  taxation  does 
not  in  the  least  affect  what  may  be  called  feudal  taxation,  does 
not  modify  it,  or  diminish  it,  or  render  it  in  any  way  different 
from  that  in  other  countries.  Indeed  feudal  taxation  in  England 
was  more  logical  and  consistent  than  was  generally  the  case, 
because  the  strong  royal  power  maintained  certain  very  char- 
acteristic feudal  incidents,  like  the  relief,  which  tended  to  dis- 
appear elsewhere  because  of  the  undue  emphasis  of  the  vassal 
side  of  the  feudal  relationship.  Maitland's  last  sentence  in  this 
paragraph  needs,  I  believe,  some  modification.  It  reads:  "On 
the  other  hand,  the  king  relying  on  the  nation  is  strong  enough 
to  insist  that  the  lords  shall  not  tax  their  tenants  without  his 
consent."  The  reference  here  is,  as  I  understand  it,  to  the  prac- 
tice which  is  the  subject  of  clause  15  of  Magna  Carta,  and  I 
would  refer  in  general  to  the  comment  on  that  clause  in  chapter 
V.  (p.  230).  I  do  not  think  that  any  such  limitation  on  the  mesne 

[191] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

lord  was  established  in  law  in  the  period  here  considered.  What 
we  find  in  the  sources  rather  is  such  a  principle  in  the  course  of 
establishment  by  what  is  really  a  royal  usurpation.  Book  IX. 
of  Glanvill,  especially  c.  8,  3  and  4,  indicates  clearly  enough 
what  was  the  actual  law  at  that  date. 

5.  "The  administration  of  justice  is  never  completely  feu- 
dalized. The  old  local  courts  are  kept  alive,  and  are  not  feudal 
assemblies.  The  jurisdiction  of  the  feudal  courts  is  strictly 
limited;  criminal  jurisdiction  they  have  none  save  by  express 
royal  grant,  and  the  kings  are  on  the  whole  chary  of  making 
such  grants."  This  is  very  true.  The  independence  of  the  old 
local  courts  did  interfere  with  private  jurisdiction  as  that  is  seen 
elsewhere,  and  in  this  feature  the  practical  feudalism  of  England 
departs  most  widely,  I  think,  from  that  of  the  continent.  But 
I  must  maintain,  however  contrary  to  current  opinion,  that  the 
extreme  development  of  private  jurisdiction,  as  it  is  seen  in 
France  for  instance,  is  non-feudal.  It  is  certainly  not  the  real- 
ization of  an  ideal  feudalism.  No  feudal  principle  calls  for  a 
transfer  of  public  criminal  jurisdiction  to  private  hands.  The 
break  up  of  general  government,  the  exaggeration  of  the  inde- 
pendence of  the  vassal,  the  overemphasis  of  this  side  of  things, 
were  responsible  for  it  and  no  logical  development  of  feudalism 
itself.  Feudal  jurisdiction  proper,  that  is,  the  jurisdiction  of  the 
lord's  court  over  his  vassals  in  their  relations  with  him  and  with 
one  another,  was  not  interfered  with  by  anything  in  English  law 
or  constitution  until  the  new  developments  of  the  royal  prerog- 
ative began.  It  is  true,  however,  that  it  does  not  develop  logi- 
cally and  normally.  The  atmosphere  and  the  actual  conditions 
were  not  favorable  to  it  and,  as  I  said,  it  is  in  this  feature  that 
English  feudalism  departs  most  widely  from  the  ideal.  But  it 
is  important  to  understand  that  the  possession  of  a  public  crimi- 
nal jurisdiction  has  nothing  to  do  with  the  matter,  except  as 
practically  the  condition  of  society  which  would  allow  of  an 
ideal  development  of  feudal  jurisdiction  proper  would  very  likely 
cause  to  drift  into  the  baron's  hands  a  public  criminal  jurisdic- 
tion also.  But  no  baron  anywhere  possessed  such  a  jurisdiction 

[192] 


except  by  royal  grant,  or  by  derivation  from  an  uncontrolled 
economic  jurisdiction,  which  it  must  be  remembered  is  non- 
feudal  in  origin,  or  by  bald  usurpation. 

6.  "The  curia  regis,  which  is  to  become  the  commune  con- 
cilium regni,  never  takes  very  definitely  a  feudal  shape."  With 
this  I  wholly  disagree.  The  English  curia  regis  was,  I  believe, 
from  1066  to  the  decline  of  feudal  ideas  in  the  thirteenth  century 
as  definitely  and  entirely  feudal  as  any  in  Europe.  The  non- 
feudal  elements  in  it  are  to  be  explained  as  in  chapter  II.  and 
not  by  any  reference  to  the  witan.  They  occur  in  every  feudal 
state,  and  they  constitute  a  defect  in  an  ideal  feudalism  only 
because  the  existence  together  with  a  feudal  organization  of  the 
state  of  a  lord  paramount  who  is  at  the  same  time  a  king  neces- 
sarily involves  some  inconsistencies.  There  is  nothing  here  that 
is  peculiar  to  England.  I  think  it  not  quite  correct  to  say  that 
the  curia  regis  becomes  the  commune  concilium  regni.  The 
coming  into  use  of  the  latter  name  indicates  no  institutional 
change.  The  change  is  in  ideas,  in  interpretation,  though  the 
new  ideas  are  to  lead  by  the  close  of  the  century  to  institutional 
changes. 

No  ideal  feudalism  is  to  be  found  in  any  country  in  actual 
operation,  but  when  we  use  the  term  we  ought  to  mean  by  it  a 
feudalism  which  has  developed  logically  all  the  essential  prin- 
ciples of  feudalism,  not  a  part  to  the  exclusion  of  others,  to 
results  which  are  ideally  true  to  such  an  origin.  The  lord  para- 
mount as  the  head  of  the  whole,  and  the  binding  together  of  all 
ranks  in  the  feudal  hierarchy  by  a  series  of  reciprocal  rights  and 
obligations  from  the  highest  to  the  lowest,  into  a  national  organi- 
zation by  which  a  general  government,  which  is  real  however 
crude,  can  be  carried  on,  are  absolutely  essential  features  of  the 
feudal  system.  They  are  indeed  everywhere  recognized  in 
theory,  though  often  widely  departed  from  in  practice.  A 
feudalism  which  does  not  realize  these  features  in  objective  fact 
as  fully  as  it  realizes  the  local  independence  of  the  vassal,  which 
does  not  maintain  both  these  sides,  in  modification  one  of  the 
other,  in  normal  and  rational  balance,  cannot  be  an  ideal  feu- 

[193] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

dalism.  It  is  in  this  sense  that  I  say  that  in  my  opinion  the 
England  of  1215  was  "the  most  perfectly  logical  feudal  king- 
dom to  be  found  in  Christendom." 

I  am  tempted  to  add  that  the  Latin  kingdom  of  Jerusalem 
seems  to  me  to  stand  next  in  order  in  this  respect,  but  this  state- 
ment must  be  qualified  by  adding  that  the  feudalism  of  the 
kingdom  of  Jerusalem  is  "ideal,"  so  far  as  it  can  be  called  so  at 
all,  as  expressed  in  its  law  and  theory.  As  objectively  expressed 
in  practical  operation,  there  were  so  many  wide  departures  from 
the  ideal  that  there  would  seem  to  be  room  to  doubt  how  truly 
in  some  particulars  the  law  as  written  down  ever  represented  the 
actual  facts. 

NOTE  B.     FEUDAL  LEGISLATION 
(Page  165.} 

EVIDENCE  of  the  exercise  of  the  legislative  function  either  by 
the  small  or  the  large  curia  regis  before  the  reign  of  Henry  III. 
is  not  easy  to  find,  but  there  can  be  no  doubt  that  there  was 
considerable  action  which  may  fairly  be  called  legislation  by 
one  body  or  the  other  during  the  time  when  feudalism  was  at  its 
height.  It  is  not  likely,  however,  that  it  was  often  the  result 
of  formal  deliberation  with  a  conscious  purpose  of  legislation, 
as  in  modern  times,  or  that  it  was  usually  embodied  in  anything 
approaching  so  near  to  the  form  of  an  enacted  law  as  do 
the  Assize  of  Clarendon  and  Richard  I.'s  Assize  of  Measures. 
Hoveden,  IV.  33.  On  the  legislative  activity  of  William  I.  see 
P.  and  M.,  I.  88;  Liebermann,  Lets  Willelme,  Archiv  fiir  Neueren 
Sprachen,  CVI.  136;  Gesetze,  I.  505,  2,  a  and  e.  Few  feudal  en- 
actments could  have  been,  like  many  modern  statutes,  sources  of 
wholly  new  law.  They  were  rather  regulations  of  procedure, 
to  be  followed  by  the  courts  or  by  administrative  officers,  or 
modifications  made  in  existing  customary  law,  or  the  settlement 
of  difficult  problems  which  had  arisen  in  the  work  of  the  justices 
or  of  administrative  officers.  See  Stubbs,  I.  614.  Hence  it  is 
easy  to  see  how  closely  such  action  of  the  curia  regis  would  be 

[194] 


THE  GERM  OF  THE  CONSTITUTION 

related  to  its  judicial  action  on  one  side  and  to  its  administrative 
on  the  other.  Hence  also  it  is  likely  that  we  shall  find  evidence 
of  legislative  action,  not  so  much  in  formal  enactments  as  in  the 
shape  of  notifications,  writs,  and  letters  patent  and  close, 
and  this  even  in  cases  so  obviously  direct  legislation  as  the 
"ordinance"  of  William  I.  separating  the  spiritual  and  temporal 
courts.  The  function  of  legislation  was  also  very  closely  allied 
to  that  of  counsel  and  we  may  expect  to  find  some  evidence  of 
it,  as  least  in  this  related  form,  in  charters,  as  in  the  two  issued 
by  Duke  William  before  the  Conquest  in  favour  of  the  abbey  of 
St.  Evroul,  in  which  perhaps  the  council  went  beyond  its  powers, 
unless  its  action  was  intended  to  be  merely  confirmatory,  one 
dated  in  1050  and  the  other  it  is  likely  somewhat  earlier.  Ord. 
Fit.,  V.  173-180;  II.  39.  From  the  names  of  the  witnesses  to 
these  charters  we  may  be  very  sure  that  the  action  was  that  of 
the  small  rather  than  the  large  curia,  or  at  most  of  a  reinforced 
small  curia. 

That  these  two  forms  of  the  curia,  the  large  and  the  small, 
were  in  practice  identical  in  all  functions  except  the  legislative, 
and  that  the  choice  between  the  two  in  any  case  depended  merely 
upon  convenience,  or  the  importance  of  the  case,  I  take  to  be 
so  well  understood  as  to  need  no  illustration  here.  See  Mait- 
land,  Memoranda  de  Parliamento,  p.  Ixxxviii.,  and  Bracton's 
N.  B.,  pi.  1273.  It  would  be  of  value  if  examples  of  legislative 
action,  or  what  approaches  near  to  it,  by  the  small  curia  could 
be  cited  especially  under  such  conditions  as  made  it  equivalent 
to  a  great  council.  Unfortunately  they  are  very  few.  When  we 
begin  to  look  for  evidence  of  the  sort  we  at  once  find  that  it  is 
difficult  to  determine  in  a  given  case  whether  a  large  or  a  small 
curia  is  acting.  The  sources  do  not  distinguish  between  them 
and  this  is  evidently  due  to  the  fact  that  contemporaries  made 
in  their  own  minds  no  distinction  between  them  unless  it  be  that 
of  size.  They  use  no  other  distinguishing  words  until  differ- 
entiation of  business  has  made  considerable  progress.  If  such 
a  distinction  was  made  we  should  look  for  it,  I  think,  most  confi- 
dently in  such  treatises  as  Glanvill  and  the  Dialogus  de  Scac- 

[195] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

carlo.  But  there  is  no  hint  that  the  writer  of  either  book  per- 
ceived any  difference.  Glanvill  indicates  clearly  enough  the 
existence  of  courts  different  in  the  circumstances  and  place  of 
their  meeting,  and  in  their  makeup,  but  all  are  called  alike  curia 
regis  and  no  difference  between  them  in  jurisdiction  or  compe- 
tence is  suggested.  Reference  of  a  difficult  question  to  king  and 
council  (Gesta,  I.  207-208)  does  not  imply  a  difference  of  juris- 
diction, rather  the  contrary.  So  in  the  Dialogus,  if  a  distinction 
in  competence  or  function  had  been  in  mind  it  would  almost  cer- 
tainly have  been  indicated,  directly  or  indirectly,  in  I.  c.  4,  where 
some  progress  towards  a  distribution  of  business  is  evident 
enough.  By  the  time  of  Bracton  great  progress  had  been  made 
in  the  differentiation  of  machinery  and  in  the  classification  of 
business,  and  at  least  some  progress  had  been  made  towards  a 
definition  of  competence — as,  for  example,  towards  the  develop- 
ment of  a  jurisdiction  in  error,  P.  and  M.,  II.  668;  Rymer,  I. 
320;  Bracton,  f.  108;  the  Provisions  of  Oxford,  Stubbs,  S.  C., 
p.  391 — but  Bracton's  "famous  gloss"  on  c.  21  of  Magna  Carta 
shows  in  its  form  of  expression — comites  vero  vel  barones  non 
sunt  amerciandi  nisi  per  pares  suos  et  secundum  modum  delicti 
et  hoc  per  barones  de  scaccario  vel  coram  ipso  rege,  f.  116  b — 
that  in  this  matter  at  least  the  various  forms  of  the  curia  regis 
were  still  considered  identical.  See  Dialogus,  ed.  Hughes, 
Crump,  and  Johnson,  p.  67,  and  note.  Glanvill  and  Bracton  are 
chiefly  concerned  of  course  with  the  judicial  activity  of  the  curia, 
and  the  Dialogus  with  the  administrative,  but  if  no  distinction 
was  thought  of  as  essential  in  these  respects,  it  is  hardly  pos- 
sible that  any  was  considered  to  exist  in  the  rarer  and  less  con- 
scious function  of  legislation.  However  this  may-  be,  it  is  cer- 
tainly true  that  in  the  evidence  itself  of  legislative  action,  so  far 
as  we  have  any,  no  such  distinction  is  made  between  a  large  and 
small  curia  as  to  imply  that  contemporaries  distinguished  between 
them  or  to  tell  us  clearly  which  was  acting  in  a  given  case  except 
by  way  of  inference.  In  many  cases  inference  does  not  enable 
us  to  decide  with  certainty  between  the  two,  even  where  we 
strongly  suspect  from  the  manner  of  the  record  that  we  have 

[196] 


THE  GERM  OF  THE  CONSTITUTION 

to  do  with  one  or  the  other.  We  can  distinguish  the  two  extremes 
easily  enough.  There  is  on  one  side  the  great  council  of  the 
three  set  dates,  meeting  not  on  any  fixed  day,  but  almost  always 
within  two  weeks  after  Christmas,  Easter  and  Pentecost,  and  to 
these  must  be  added  those  extra  meetings  to  which  all  the  tenants- 
in-chief  were  formally  summoned.  These  are  all  clearly  meet- 
ings of  the  great  curia  regis.  At  the  other  extreme  is  the  body 
composed  of  the  household  and  court  officers  only,  or  towards 
the  close  of  the  period  the  body  composed  of  the  specially 
appointed  and  sworn  councillors  of  the  king.  Of  the  former  of 
these  forms  of  the  smaller  curia  regis  probably  the  best  early 
examples  will  be  found  in  references  to  the  action  of  the 
Exchequer,  especially  when  it  is  acting  as  something  besides  a 
mere  administrative  board,  or  in  incidental  evidence  from  the 
charters ;  of  the  latter  form  we  have  no  evidence  before  the  reign 
of  Henry  III.,  and  perhaps  not  before  towards  the  middle  of  the 
reign,  our  conclusion  on  this  point  depending  very  much  on  the 
view  we  take  of  the  doubtful  institutional  situation  during  the 
minority.  See  Baldwin,  The  Beginnings  of  the  King's  Council, 
Trans,  of  the  Royal  Hist.  Soc.,  N.  S.,  XIX.  27-59.  But  the  gap 
between  these  two  extremes  is  filled  by  meetings  of  many  inter- 
mediate grades  too  small  for  us  to  suppose  that  the  entire  baron- 
age was  summoned  to  be  present,  or  in  such  circumstances  that 
we  are  very  sure  it  was  not,  and  yet  so  large  that  it  cannot  be 
regarded  as  a  meeting  of  any  ordinary  small  curia  regis,  and  by 
other  meetings  where  the  evidence  leads  us  to  infer  directly  that 
barons  not  usually  attending  the  small  curia  were  present.  None 
of  these  can  be  called  a  meeting  of  the  great  council,  strictly 
speaking;  they  are  all  meetings  of  a  reinforced  small  curia, 
formed  irregularly,  upon  no  fixed  principles,  often  it  would  seem 
almost  or  quite  by  accident.  I  say  "reinforced"  curia  in  order 
to  use  a  wider  term  than  "afforced,"  but  one  which  will  include 
this  also.  The  latter  term  should  mean  a  curia  enlarged  by 
deliberate  intention,  no  doubt  in  many  cases  by  a  special  summons 
issued  to  selected  individuals.  See  a  case  in  Bracton's  N.  B.,  pi. 
1273.  In  strict  feudal  language  the  term  "afforce"  would  seem 

[197] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

to  mean  the  enlargement  of  a  court  by  persons  not  regularly 
members  of  it,  summoned  for  the  occasion,  often  borrowed  from 
another  court.  But  gradations  in  numbers  from  a  smaller  to  a 
larger  are  so  numerous  that  it  is  clear  that  size  had  no  significance 
in  contemporary  eyes  as  bearing  on  function.  What  does  seem 
to  have  been  considered  of  importance  was  the  presence  of  certain 
individuals  whose  rank  or  influence  would  give  weight  to  the 
action  of  the  curia.  So  clearly  does  this  seem  to  have  been  the 
case  that  when  lists  of  names  are  given,  I  think  we  are  justified 
in  inferring  that  all  persons  of  importance  who  were  present 
are  mentioned. 

Among  the  rare  cases  of  legislation,  which  seem  not  to  have 
been  the  acts  of  a  great  council,  which  can  be  cited  from  the 
period  before  the  accession  of  Henry  III.,  particularly  inter- 
esting is  the  case  recorded  in  No.  10  of  the  Appendix  to  Robert 
of  Torigni,  Delisle,  II.  241,  Hewlett  IV.  333;  Round,  Calendar, 
No.  734,  brought  before  an  itinerant  justice  court  in  Normandy 
in  1155.  While  the  action  had  no  doubt  all  the  effect  of  legis- 
lation, and  is  to  be  legitimately  reckoned  as  an  instance  of  feudal 
legislation  (see  Professor  Powicke  in  E.  H.  R.,  XXII.  18,  n.  15), 
it  seems  to  have  been  reached  in  the  way  of  a  judicial  decision. 
The  statement  of  the  facts  and  the  use  of  the  word  diracionavit 
seem  to  imply  this.  It  is,  therefore,  a  good  example  of  the  close 
relationship  of  legislative  and  judicial  action  in  the  feudal  age, 
as  well  as  of  the  retention  by  the  itinerant  justices  of  other 
functions  of  the  curia  regis  than  the  merely  judicial,  at  least  of 
their  readiness  to  infringe  upon  them  without  hesitation.  As  a 
judicial  decision,  their  action  may  have  been  based  on  some  such 
principle  of  the  old  law  as  that  stated  in  Leges  Henrici,  c.  55, 
Liebermann,  Gesetze,  I.  575.  The  case  of  legislation  at  Verneuil 
in  1177,  Gesta,  I.  1Q4,  if  we  may  judge  from  a  combination  of 
the  season  of  the  year  with  the  names  mentioned,  seems  rather 
to  have  been  in  a  reinforced  small  curia  than  in  the  great  council 
of  Normandy.  A  case  from  Stephen's  reign  may  be  found  in 
Delisle,  Recueil  des  Actes  de  Henri  II.,  I.  117,  of  legislation  in 
enforcement  of  the  truce  of  God  adopted  in  the  presence  of  the 

[198] 


THE  GERM  OF  THE  CONSTITUTION 

archbishop  of  Rouen  and  four  Norman  bishops  et  omnium 
baronum  mearum  subscriptorum  communi  consilio  et  assensu. 
The  witnesses  are  the  bishop  of  Carlisle  and  three  barons.  On 
the  exchequer  see  Madox,  I.  219-220.  The  legislation  adopted 
to  enforce  c.  61  of  Magna  Carta,  Rymer,  I.  134  (27  June),  can 
hardly  have  been  that  of  a  great  council,  but  was  undoubtedly 
decided  upon  in  a  reinforced  small  council.  These,  with  the 
instance  given  from  1050,  are  the  only  cases  I  can  cite  at  present 
before  1216.  It  is  only  after  the  accession  of  Henry  III.  that 
examples  become  more  abundant  and  satisfactory.  The  action 
of  January  30,  1230,  Madox,  II.  27,  g,  must,  I  think,  have  been 
that  of  a  small  curia,  though  the  number  of  earls  named  is 
unusual.  It  may  have  been  an  especially  large  council,  remain- 
ing in  session  after  a  meeting  of  the  great  council;  that  of 
February  11,  1232,  is,  I  think,  open  to  no  question,  Rymer,  I. 
202 ;  nor  is  the  action  in  regard  to  the  preservation  of  the  peace 
of  June  1,  1233,  Rymer,  I.  209-210;  nor  that  in  regard  to  wrecks 
announced  in  a  charter  of  May  26,  1236,  if  taken  near  that  date, 
Ibid.,  p.  227.  It  is  a  little  tempting  to  say  that  the  records 
copied  in  Bracton's  N.  B.f  case  1117,  show  us  a  reinforced  small 
council  meeting  and  legislating  in  advance  of  a  great  council 
which  also  legislates  upon  another  matter  and  then  confirms  the 
action  of  the  smaller  body.  But  exactly  what  took  place  in 
October,  1234,  is  not  clear  enough  to  enable  us  to  affirm  anything 
with  certainty.  Cf.  Cal.  Close  Rolls,  p.  588-589.  It  should  be 
noted  that  October,  especially  October  13,  was  a  frequent  date 
for  the  meeting  of  a  great  council  in  Henry's  reign.  The  legis- 
lation of  the  early  weeks  of  1237  raises  some  interesting  ques- 
tions. See  Bracton's  N.  B.,  I.  106.  The  Annals  of  Burton,  pp. 
251-253,  state  that  on  February  5,  legislation  was  adopted  in 
regard  to  the  forest  officers  of  the  king.  Then  follows  imme- 
diately without  explanation,  as  if  a  part  of  the  same  action  of 
the  council,  the  regulation  in  regard  to  the  period  of  limitation 
for  various  writs  which  is  usually  given  as  c.  8  of  the  Statute  of 
Merton,  Statutes  of  the  Realm,  I.  1.  Then  follows,  introduced 
by  the  words  postea  apud  Kenentone  coram  ipso  domino  rege  et 

[199] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

concilio  suo,  further  legislation  in  regard  to  purveyance.  The 
Annals  of  Burton  are  so  trustworthy,  particularly  in  the  matter 
of  documents,  that  we  should  naturally  be  inclined,  in  the  absence 
of  any  difficulty  in  the  account  itself,  to  accept  this  statement  of 
what  was  done  by  the  council  as  it  stands.  But  what  was  prob- 
ably an  entry  on  the  coram  rege  roll  of  this  year,  copied  into 
Bracton's  Note  Book  (III.  230),  says  that  the  legislation  in 
regard  to  writs  was  adopted  in  generali  concilio  apud  Westmon- 
asterium,  and  the  notification  of  the  change  which  was  sent  to 
the  barons  of  Ireland  (Cal.  Pat.  Rolls,  176),  says  it  was  pro- 
vided before  "E.  Archbishop  of  Canterbury,  the  bishops,  abbots, 
earls  and  barons  of  the  realm  of  England,"  which  would  also 
naturally  be  taken  to  mean  a  general  council.  These  two  pieces 
of  evidence  together  seem  to  be  conclusive.  A  great  council, 
apparently  attended  in  unusual  numbers,  had  been  held  at  West- 
minster in  January,  at  which  a  thirtieth  had  been  granted  the 
king  in  return  for  a  confirmation  of  Magna  Carta,  and  this  con- 
firmation had  been  made  in  the  famous  "small  charter,"  dated 
January  28.  M.  Par.,  III.  380-384,  Ann.  Tewk.,  pp.  102-105. 
But  the  Charter,  Patent  and  Close  Rolls  agree  in  placing  the 
king  at  Kempton  from  February  4-10,  the  Patent  Rolls  from  the 
second  (CaL,  p.  174),  and  the  Close  Rolls  from  the  third  (CaL, 
p.  520).  It  should  be  noted  also  that  the  formula  in  Burton — 
coram  domino  rege  et  coram  domino  Edmundo  Cantuariensi 
archiepiscopo  et  aliis  terrae  magnatibus  de  concilio  domini  regis — 
for  the  legislation  of  February  5,  is  more  likely  that  of  a  small, 
or  of  a  reinforced  small,  rather  than  of  a  great  council,  and  that 
the  legislation  in  regard  to  purveyance  is  put  at  Kempton.  The 
great  council  probably  dissolved  on  the  granting  of  the  charter 
(M.  Par.,  III.  383),  and  the  king  proceeded  to  Kempton  with 
a  smaller  number  of  barons.  One  of  two  conclusions  seems 
necessary.  Either  Burton's  order  of  events  is  wrong,  and  the 
legislation  in  regard  to  writs  was  adopted  in  the  great  council 
before  it  broke  up — which  seems  to  me  the  more  probable,  or 
this  legislation  adopted  afterwards  at  Kempton  by  the  smaller 
council  was  regarded  as  virtually  the  act  of  the  larger  by  that 

[200] 


THE  GERM  OF  THE  CONSTITUTION 

identification  of  the  two  in  other  functions  which  does  not  close 
with  the  end  of  the  century.  Maitland,  Mem.  de  Parl.,  pp. 
xxxvi.  and  Ixxxviii.  If  the  statement  in  Bracton's  Note  Book 
stood  alone  without  that  in  the  Patent  Roll  this  would  be  the 
more  probable  explanation.  In  either  case,  it  remains  clear  that 
the  legislative  function  was  exercised  by  what  was  not  a  great 
council  of  the  whole  kingdom.  A  number  of  other  cases  might 
be  cited  like  that  of  May  9,  1256,,  Statutes  of  the  Realm,  I.  7; 
Bracton's  N.  B.,  I.  42-43 ;  and  some  of  the  cases  cited  in  P  and 
M.,  I.  180,  n.  4.  An  interesting  case  of  legislation  in  the 
exchequer  is  mentioned  in  M.  Par.,  V.  588.  Of  this  case  it  should 
be  noted  that  the  apparent  emphasis  on  the  ore  proprio  is  not 
because  of  the  king's  action — the  Rechtsgebot  is  just  as  neces- 
sary in  legislation  as  in  the  judicial  function — but  because  of  the 
unusual  fact  of  his  actual  presence  in  the  exchequer.  See  cases 
of  the  same  emphasis  in  other  ways  in  Madox,  I.  192  t;  II.  11, 
z,  a.  Other  cases  cited  by  Madox  do  not  seem  to  me  to  the  point. 
I  do  not  think  we  can  take  cases  of  council  and  exchequer  acting 
together,  or  the  phrase  coram  rege,  as  indicating  the  personal 
presence  of  the  king  at  any  time  in  the- reign  of  Henry  III. 

If  any  one  .prefers  to  call  acts  of  legislation  by  the  small  curia 
ordinances,  no  objection  can  be  offered,  but  if  the  term  is  used 
in  order  to  distinguish  them  from  legislative  acts  of  the  great 
council,  a  distinction  is  introduced  into  the  twelfth  and  thir- 
teenth centuries  which  did  not  exist  until  later.  See  P  and  M., 
I.  181 ;  Mem.  de  Parl.,  li.  ff.  Whether  a  legislative  act  of  the 
thirteenth  century  was  finally  to  be  reckoned  as  a  statute  or  not 
depended  apparently  not  at  all  on  the  body  by  which  it  was 
enacted,  but  on  something  of  which  we  cannot  be  sure,  on  acci- 
dent, or  on  the  importance  of  the  matter  which  it  concerned,  or 
on  the  question  whether  it  remained  for  a  considerable  time  the 
final  legislation  on  the  subject.  The  thirteenth  century  was 
busily  occupied  in  differentiating  official  bodies,  parts  of  the 
machinery,  and  in  the  classification  of  business,  but  not  in  the 
process  which  must  logically  follow  of  consciously  differentiating 
functions,  that  is,  of  setting  off  different  functions  to  different 

[201  ] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

bodies,  or  at  least,  it  makes  only  the  slightest  beginnings  in  that 
direction.  As  the  century  goes  on  men  are  plainly  beginning  to 
think  of  the  council  officially  in  a  way  in  which  they  had  not 
thought  of  the  old  small  curia.  The  councillor's  oath  shows  that. 
But  there  is  no  change  in  function.  The  council  in  action  is  still 
the  small  curia,  though  we  may  detect  beginnings  of  change 
like  the  greater  emphasis  which  seems  to  be  placed  on  the  func- 
tion of  counsel,  and  the  tendency  to  recognize  in  the  council,  as 
distinct  from  the  new  judicial  system,  a  superior  jurisdiction  in 
error. 

In  regard  to  distinguishing  names,  and  to  what  was  said 
earlier  in  this  note  concerning  a  consciousness  of  a  difference 
in  size  between  the  two  forms  of  the  curia,  the  frequent  use  of 
the  terms  magnum,  or  generale,  with  concilium,  or  placitum,  in 
the  chroniclers  should  not  be  overlooked.  Documentary  evidence 
is  not  so  frequent — see  Maitland,  Mem.  de  Par.,  p.  Ixxxviii., 
n.  1,  but  it  is  not  wholly  wanting.  To  mention  a  few  cases  only 
from  the  twelfth  century,  we  have  in  generali  consilio  in  1127  in 
Cont.  Flor.  Wig.,  II.  90;  magnum  placitum  in  1131  and  1132  in 
Henr.  Hunt.,  252-253,  and  cf.  the  habito  non  parvo  conventu  of 
Will.  Malm.,  II.  534,  for  the  former  date ;  the  in  generalis  concilii 
celebratione  of  1136,  Madox,  I.  13,  s,  is  documentary;  magnum 
concilium  in  1164,  Hoveden,  I.  224;  the  same  in  1170,  Cont.  Flor. 
Wig.,  II.  138;  again  in  1171,  Gesta,  I.  4,  and  in  1176,  ibid.,  I. 
107.  For  the  reign  of  Henry  III.  the  cases  are  too  numerous 
to  need  citation,  but  the  in  generali  concilio  of  Bracton's  N.  B., 
III.  230,  cited  above  is  documentary,  and  see  Rymer,  I.  152,  and 
the  magnum  parliamentum  of  Ann.  Tewk.,  p.  143,  and  the  con- 
venit  ad  parlamentum  generalissimum  regni  Anglicani  totalis 
nobilitas  of  M.  Par.,  IV.  518,  may  be  of  interest.  I  have  found 
no  case  of  commune  consilium  before  Magna  Carta  c.  12,  and  in 
this  case  of  course  the  words  may  mean  the  common  counsel,  and 
not  council,  though  they  can  equally  well  mean  the  latter  so  far 
as  contemporary  usage  goes.  While  I  have  never  found  a  quali- 
fying adjective  to  distinguish  the  small  curia,  I  think  there  is 
evidence  enough  to  warrant  us  in  saying  that  the  difference  in 

[202] 


THE  GERM  OF  THE  CONSTITUTION 

size  between  the  large  and  the  small  curia  was  noticed.  Con- 
temporaries in  the  thirteenth  century  undoubtedly  made  no  dis- 
tinction between  the  legislative,  and  judicial  functions  as  exer- 
cised by  the  curia  regis.  The  use  of  the  word  judicium  for  what 
is  really  legislation  in  the  action  taken  by  the  council  to  enforce 
c.  61  of  Magna  Carta,  cited  above,  is  an  interesting  indication 
of  failure  to  distinguish.  In  many  cases  also  there  was  little 
practical  difference  as  in  the  instance  in  Normandy  in  1155.  But 
this  fact  was  not  due  to  any  positive  identification  of  these  two 
functions,  nor  to  any  conscious  assignment  of  a  double  function 
to  a  single  institution;  it  was  wholly  due  to  the  fact  that  the  men 
of  the  time  did  not  think  about  their  institutions  or  the  pro- 
cesses of  government  at  all.  Later  men  did  become  conscious 
of  these  distinctions,  and  then,  while  in  those  institutions  which 
may  be  said  to  be  the  old,  unchanged  curia  regis,  large  and  small, 
the  House  of  Lords  and  the  council,  the  same  variety  of  func- 
tions continued,  the  exercise  of  these  functions,  the  functions  in 
exercise,  were  more  and  more  sharply  distinguished  as  time  went 
on,  except  perhaps  in  an  age  of  revolution  like  the  seventeenth 
century,  an  age  of  revolution  primarily  in  ideas  and  interpre- 
tation. 

Evidence  confirmatory  of  all  the  points  of  this  note  could  be 
drawn  from  the  contemporary  sources  of  French  institutional 
history. 

NOTE  C.     THE  FEUDAL  CONTRACT 
(Page  170.} 

THE  reference  to  service  is  in  the  majority  of  cases  indefinite,  as 
per  servitium  militare,  or  merely  pro  suo  servitio,  or  pro  suo 
homagio  et  servitio.  Any  cartulary  will  furnish  numerous 
examples.  Homage  appears  to  have  been  considered  the  really 
essential  thing  in  the  formation  of  the  relationship.  If  the  man 
was  admitted  to  perform  homage,  fealty  followed  normally.  The 
importance  of  homage  as  the  formal  recognition  and  acceptance 
by  the  lords  of  the  rightful  heir  and  of  the  rightful  title  to  land 

[203] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

is  clearly  indicated  in  Glanvill,  Book  IX.,  especially  c.  6.  This 
was  the  meaning  of  homage  performed  to  the  heir  to  the  throne 
during  the  lifetime  of  the  father,  to  Matilda,  daughter  of  Henry 
I.,  for  instance,  and  of  the  acceptance  of  the  homage  of  William, 
son  of  Henry  I.,  for  Normandy  by  Louis  VI.  in  1120;  it  was  a 
binding  engagement  to  recognize  the  right  of  succession  when 
the  time  should  come.  Undoubtedly  the  provision  of  the  law 
noted  in  Glanvill,  IX.  4,  2 — inserted  in  c.  3  of  Magna  Carta  in 
the  reissue  of  1216 — that  the  homage  of  a  minor  heir  must  be 
received  by  the  lord  before  he  can  exercise  his  right  of  wardship, 
refers  to  homage  as  a  recognition  of  title.  No  clearer  statement 
of  the  character  of  homage  as  creating  a  contract  is  to  be  found 
in  the  original  literature  of  feudalism  than  that  of  Bracton,  f.  78 
b.  (ed.  Twiss.,  I.  620).  Homage  and  fealty  were  usually  so 
inseparable  that  it  may  almost  be  said  that  both  were  required 
to  make  the  contract.  Sometimes  the  contractual  character 
appears  clearly  enough  either  in  the  oath  of  fealty  or  in  the 
account  of  the  homage.  The  oath  of  Henry  II.  to  Louis  VII. 
in  December,  1158,  reads  thus:  Ego  rex  Henricus  assecurabo 
Regi  Francorum  sicut  domino  vitam  suam  et  membra  sua  et 
terrenum  honorem  suam:  si  ipse  mihi  assecuraverit,  sicut  homini 
et  fideli  suo,  vitam  meam  et  membra  mea,  et  terras  meas  quas 
mihi  conventionavit  de  quibus  homo  suus  sum  ....  [peace  to 
be  made  with  Count  Theobald]  .  .  .  .  Et  postea  si  ei  debeo  ali- 
quid  servitii,  faciam  ei.  Bouquet.,  XVI.  16.  Cf.  the  homage  of 
Robert  of  Gloucester  to  Stephen  and  its  withdrawal:  Wm.  of 
Malm.,  II.  541,  545.  Sometimes  local  custom  is  distinctly  re- 
ferred to  as  defining  the  service:  Haec  omnia  ....  abbas  red- 
didit  ei  et  filio  ejus  Girberto  in  foedio  ita  ut  libere  possideant  et 
nullam  diffinitam  consuetudinem  pro  his  omnibus  reddant  excepto 
illo  communi  et  assueto  servitio  quod  semper  debet  serviens  hujus- 
modi  seniori  suo.  Quoted  by  Flach,  Origines,  II.  556,  n.  1,  from 
a  manuscript  cartulary  of  Saint-Jean  d'Angely;  Et  concedunt 
.  .  .  pro  homagio  et  servitio  suo  per  servitium  militare  sicut 
csetere  milites  de  abbatia  tenent,  Ramsey  Cartulary,  I.  171,  cf. 
169.  An  instance  of  a  similar  method  of  definition  affecting  the 

[204] 


THE  GERM  OF  THE  CONSTITUTION 

duty  of  the  lord  is  to  be  found  in  the  Ramsey  Cartulary,  I.  154: 
dominus  Walterus  tenebit  se  cum  abbate  sicut  cum  suo  homine. 
On  these  vague  specifications  of  service  see  Waitz,  Deutsche 
Ferfassungsgeschichte,  VI.  69-70.  Charters  mentioning  specific 
services  to  be  rendered  are  of  course  very  numerous,  especially 
where  the  payment  of  a  money  rent  takes  the  place  of  all  or  a 
part  of  the  service.  Nearly  all  these  cases,  however,  imply  the 
ordinary  feudal  service,  which  is  left  unspecified,  or  vaguely 
specified,  unless  the  contrary  is  indicated  by  some  such  phrase 
as  pro  omni  servitio.  See  Chron.  Mon.  Abingdon,  II.  132,  135, 
and  the  charter  cited  above  from  the  Ramsey  Cartulary,  I.  154. 
A  specification  of  services  on  the  side  of  both  lord  and  vassal  is 
found  in  No.  76  of  Vol.  I.  of  the  Antiq.  Cart.  Eccl.  Baiocensis 
(Round,  Cat.,  p.  530).  For  the  use  of  homage  as  a  means  of 
making  private  contracts  having  nothing  to  do  with  feudalism, 
see  the  article  on  this  subject  by  G.  Platon,  in  the  Revue  Gen- 
erate du  Droit  et  de  la  Legislation  et  de  la  Jurisprudence,  XXVI. 
(1902),  in  three  numbers,  pp.  1,  97  and  224.  See  also  Imbart 
de  la  Tour  on  L'Evolution  des  Idees  Sociales  au  Moyen  Age  du 
XI.  au  XIII.  Siecle  in  the  Comte  Rendu  de  I'Acad.  des  Sciences 
Mor.  et  Polit.,  Tome  146  (1896),  pp.  395-432  (reprinted  in  his 
Questions  d'Histoire  Sociale  et  Religieuse,  1907).  M.  Imbart  de 
la  Tour  argues  that  the  social  revolution  of  the  thirteenth  cen- 
tury consisted  in  the  extension  of  the  regime  of  contract  from  the 
seigneurial  class  to  the  third  estate.  Cf.  especially  pp.  417-418. 
On  the  mutual  character  which  is  essential  to  a  contract,  I  may 
cite:  Mutua  quidem  debet  esse  dominii  et  homagii  fidelitatis  con- 
nexio,  ita  quod  quantum  homo  debet  ex  homagio,  tantum  illi  deget 
dominus  ex  dominio  preter  solam  reverentiam,  Glanvill,  IX.  4,  1 ; 
et  nota  quod  qua  fidelitate  tenetur  vassallus  domino,  eadem  tena- 
tur  dominus  et  vasallo,  Durantis,  Speculum  Juris,  title  De  Feudes, 
c.  2  (thirteenth  century)  in  Homeyer,  Sachsenspiegel,  Bd.  II.  Qui 
solidus  est  de  seniore,  obtime  debet  ille  servire  vel  secundum  posse, 
vel  secundum  illorum  conventionem ;  et  senior  debet  eum  habere 
contra  cunctos  et  nullos  contra  eum.  Usatici  Barchinone,  c.  36 
(the  oldest  existing  feudal  code ;  this  portion  of  it  probably  dating 

[205] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

before  1068)  in  Giraud,  Droit  Frangais  an  Moyen  Age,  II.  472, 
and  cf.  the  constitution  of  Konrad  II.  of  May  28,  1037,  which 
formed  the  germ  of  the  Lombard  Libri  Feudorum,  especially  the 
second  paragraph.  See  also  the  notification  by  Philip  II.  in  1198 
regarding  the  liege  homage  of  Theobald,  Count  of  Champagne,  in 
Brussels,  Usage  des  Fiefs,  pp.  116-119  (Delisle,  Catalogue  des 
Actes  de  Philippe-Auguste,  no.  533).  This  is  so  fundamental  a 
matter  in  feudalism  and  has  been  so  long  almost  a  commonplace 
that  proof  is  scarcely  necessary.  See  Hallam,  Middle  Ages, 
chapter  II.,  pt.  I.  As  to  the  triumph  of  private  over  public  law 
in  feudalism,  see  as  follows:  Le  regime  feodal  n'etablissait  entre 
les  habitants  d'un  meme  pays  aucune  des  relations  qui  nous  sem- 
blent  indispensables  pour  constituer  un  fitat.  II  n'y  avait  alors 
ni  impot  public,  ni  service  militaire  public,  ni  tribunaux  publics. 
Seignobos  in  Lavisse  et  Rambard,  Histoire  Generale,  II.  61 
(Dow's  Translation,  p.  65),  a  rather  extreme  statement  even 
if  "pays"  is  taken  in  its  narrow  sense.  One  of  the  best  brief 
descriptions  to  be  found  of  the  process  by  which  the  public  law 
disappeared  in  the  earlier  feudal  age  and  of  its  reappearance 
later  is  M.  Pfister's  in  Lavisse's  Histoire  de  France,  II.  1.  425- 
439.  See  also  Flach,  Origines  de  L'Ancienne  France,  I.,  Bk.  II.; 
Revue  Historique,  XLIV.  347-348  (1890);  LVI.  393  (1894); 
P.  and  M.,  I.  230-231,  526.  The  feudal  contract  not  merely 
transformed  a  public  duty  into  a  private  obligation,  but,  viewed 
from  the  side  of  the  lord,  into  a  property  right.  For  a  necessary 
modification  of  too  extreme  statements  of  the  disappearance  of 
public  law,  see  p.  37  above.  The  definition  of  feudalism,  that  it 
is  a  system  of  things  in  which  private  law  has  usurped  the  place 
of  public,  is  probably  well  known,  but  to  me  at  least  it  does  not 
seem  that  the  bearings  of  this  fact  on  English  constitutional  his- 
tory have  been  seen  as  clearly  as  they  should  be,  nor  its  conse- 
quences followed  to  the  end.  See  Maitland,  Constitutional  His- 
tory, p.  164,  last  sentence,  which,  I  believe,  is  much  too  strongly 
stated. 


[206] 


CHAPTER  V 
MAGNA 


It  is  my  belief  that  a  clear  understanding  of  what 
the  Great  Charter  was  thought  to  mean  in  the  year 
1215  by  those  who  framed  it  and  of  its  relation  to 
earlier  law  and  institutions,  is  indispensable  to  any- 
one who  wishes  to  comprehend  either  how  the  English 
Constitution  originated  or  what  the  influence  of  the 
charter  was  on  later  history.2  There  is,  I  think,  no 
institution  and  no  set  of  facts  bearing  upon  the  estab- 
lishment of  constitutional  government  whose  correct 
interpretation,  as  understood  by  contemporaries,  is 
so  vitally  necessary  as  this.  Such  an  opinion  should 
go  almost  without  saying  because  the  Charter  is  a 
great  generic  or  comprehensive  document,  gathering 
into  itself  in  result  almost  all  legal  and  institutional 

1  The  labor  of  anyone  who  comments  in  the  future  on  the  clauses  of  the 
Great  Charter  has  been  greatly  lightened  by  the  careful  and  learned 
work  of  Dr.  W.  S.  McKechnie:  Magna  Carta,  Glasgow,  1905.     The  book 
is  far  in  advance  of  any  earlier  commentary  in  the  application  of  a 
knowledge  of  medieval  law  and  custom  and  of  the  results  of  recent  in- 
vestigations to  the  separate  provisions  of  the  Charter,  and  in  the  way 
of  detailed  explanation  of  most  clauses  it  leaves  little  to  be  desired.    In 
the  general  relation  of  the  Charter  to  the  body  of  feudal  law  and  ideas 
of  its  time  the  book  may  be  thought  to  fall  somewhat  short  of  what  is 
needed,  and  this  leads  in  a  few  cases  to  something  less  than  a  strictly 
logical  application  of  feudal  principles  and  to  an  occasional  demand 
that  the  barons  of  1215  should  be  influenced  by  political  and  constitu- 
tional notions  possible  only  to  the  future. 

2  See  note  A  at  the  end  of  the  chapter  (p.  252). 

[207] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

history  since  the  Conquest  whatever  may  have  been 
its  influence  upon  the  future.  Certainly  no  apology 
is  in  place  for  so  much  of  an  analysis  of  the  Charter 
as  is  required  to  find  out  its  prevailing  character,  and 
the  meaning  of  its  more  important  provisions.  It  is 
not  my  intention  in  this  chapter  to  go  further  than 
that. 

If  we  put  together  the  clauses  of  the  Charter  which 
are  directly  feudal  in  character  we  bring  into  one 
class  clauses,  2-6 ;  8 ;  12-16 ;  21 ;  29 ;  34 ;  37 ;  39 ;  43 ;  46 ; 
and  to  these  we  may  add  because  of  an  important  part 
of  their  meaning,  32;  53;  56;  60  and  61.  With  these 
really  belong  the  following,  growing  directly  out  of 
feudal  conditions:  1;  7;  26;  27;  41;  and  42  in  one 
sense ;  49 ;  58 ;  and  59 ;  in  all  32  out  of  the  63  clauses. 
If  with  these  we  put  those  other  clauses  relating  to 
financial  abuses,  due  in  large  part  to  the  difficulties 
created  for  the  government  by  the  feudal  regime,  we 
add  9-11;  20-22;  25;  40;  and  55;  making  the  total  40. 
Due  directly  to  John's  tyranny  and  in  large  part  to 
the  means  which  he  adopted  to  keep  the  feudal  baron- 
age under  control  are  clauses  50-53;  56;  57;  and  62. 
44;  47;  and  in  part  48  refer  to  forest  abuses,  a  most 
characteristic  feature  of  the  feudal  age.  48  contains 
a  provision  for  carrying  out  certain  portions  of  the 
charter  and  63  repeats  the  enacting  clause  with  the 
necessary  final  clauses.  Leaving  eleven  clauses  un- 
accounted for.  Of  these  eight,  17-19 ;  24 ;  36 ;  38 ;  45 ; 
and  54  relate  to  the  judicial  system,  and  three,  28; 

[208] 


MAGNA  CARTA 

30 ;  and  31  to  abuses  of  the  king's  powers  of  preroga- 
tive action. 

This  is  a  classification  which  is  determined,  I 
believe,  by  the  meaning  of  the  clauses  taken  singly 
and  exhibits  the  character  of  the  Charter  as  a  whole.3 
A  slightly  different  one,  but  essentially  the  same,  may 
be  represented  in  tabular  form  as  follows.  In  any 
scheme  of  classification  that  takes  account  of  details 
certain  clauses  must  appear,  of  course,  from  different 
points  of  view,  or  from  relating  to  more  than  one 
subject,  under  two  or  more  heads: 

I.  Initial  and  final  clauses  and  the  granting 
words:  The  Preamble,  and  clauses  1  and 
63. 

II.  Purely  feudal  clauses  or  those  containing  leg- 
islative modifications  of  feudal  abuses: 
2-6;  8;  12-16;  21;  29;  32;  34;  37;  39;  43; 
46;  53;  56;  60;  61. 

III.  Matters  growing  out  of  feudal  conditions: 

1;  7;  26;  27;  41;  42;  49;  58;  59. 

IV.  Financial  difficulties  of  government: 

a.  feudal:  2-6; 

b.  only  indirectly  feudal:  9-11;  20-22;  25; 
26;  27;  40;  55. 

V.     Clauses  unwarranted,  or  of  doubtful  right: 
25;  27;  42;  45. 

3  See  the  classification  of  the  clauses  of  the  Charter  by  Professor  Edward 
Jenks  in  the  Independent  Review,  IV.  266,  and  cf.  McKechnie,  pp.  129- 
144. 

[209] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

VI.     Clauses  which  wholly  or  in  part  may  be  called 
non-feudal:  23;  33;  35;  48. 

1.  Judicial:  17-22;  24;  32;  34;  36;  38;  40; 
45;  54. 

2.  The  forest:  44;  47;  48. 

3.  Prerogative:  28;  30. 

4.  Due  to  John's  tyranny:  50-52;  53;  55; 
56;  57;  62. 

VII.     Clause  61. 

That  Magna  Carta  is  essentially  a  document  of 
feudal  law,  resting  for  its  justification  upon  feudal 
principles,  giving  expression  to  feudal  ideas,  and 
pledging  the  king  to  a  feudal  interpretation  of  his 
rights  of  action  in  so  far  as  they  affected  the  interests 
of  the  barons,  must,  I  think,  be  clear  from  this  anal- 
ysis, or  from  any  careful  study  of  its  provisions.4  In 
justification  of  this  view  I  propose  to  offer  some  com- 
ment upon  the  clauses  of  the  charter,  with  no  intention 
however,  of  including  all  the  clauses,  or  of  making  an 
exhaustive  commentary  upon  those  selected. 

*  That  much  the  greater  portion  of  feudal  law  as  written  elsewhere  con- 
sists of  limitations  upon  the  vassal's  right  of  action  does  not  make 
Magna  Carta  really  exceptional  or  indicate  that  it  is  not  to  be  classed 
among  the  statements  of  feudal  law.  The  formal  feudal  law,  like  every 
system  of  law,  occupied  itself  with  the  protection  of  those  rights  most 
exposed  to  attack.  In  England,  as  we  have  already  said,  the  extraor- 
dinary power  of  the  sovereign  compelled  a  careful  scrutiny  of  his 
rights,  an  explicitness  in  their  definition,  and  an  emphasis  of  the  ille- 
gality of  other  action  which  was  not  common  elsewhere.  In  the  field 
which  more  nearly  corresponds  with  private  law  we  have  the  same  condi- 
tions as  on  the  continent,  and  English  land  law  is  occupied  mainly  with 
limitations  upon  the  vassal's  action. 

[210] 


MAGNA  CARTA 

Clause  1  is  a  concession  to  the  church  of  its  rights 
and  liberties,  freedom  of  election  being  specifically 
mentioned.  Of  this  clause  nothing  need  be  said  for 
our  present  purpose  except  to  note  that  the  necessity 
for  it  arose  because  of  the  incorporation  of  the  church 
in  the  feudal  constitution  of  the  state,  that  is,  because 
of  the  treatment  of  the  prelate  as  a  baron  and  of  the 
endowment  of  his  office  as  a  fief.  In  defense  of  such 
an  interpretation  of  the  position  of  the  church  in  the 
feudal  age,  there  is  much  to  be  said,  but  the  church 
could  hardly  accept  this  view  of  its  public  functions,5 
and  it  had  been  struggling  against  it  in  England  and 
elsewhere  for  more  than  a  century.  To  the  church 
the  concession  meant  escape  from  those  consequences 
of  feudalism  which  were  most  serious  to  itself.  Of 
the  relation  of  the  clause  to  the  general  situation 
which  led  to  the  Charter,  it  is  to  be  said  that  on  ac- 
count of  the  importance  to  the  barons  of  the  alliance 
of  the  church,  whatever  the  church  demanded  would 
in  all  probability  have  been  included  whether  germain 
to  the  general  body  of  the  charter  or  not.  As  a  matter 
of  fact  the  concession  is  quite  germain.  It  is  away 
from  a  feudalism  under  strong  royal  control,  and  in 
the  direction  of  sectional  independence,  in  this  case 
not  of  territorial  but  of  political  units. 

The  last  part  of  the  clause  is  strictly  not  a  portion 
of  it.  It  is  the  general  formula  of  grant  to  the  free- 
men of  the  kingdom  of  the  points  which  follow  in  the 

5  See  Polit.  Hist.  Engl,  II.  124-127. 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

Charter.6  It  is  in  the  form  of  a  complete  and  unre- 
served surrender  of  rights.  Its  effect,  if  used  in  case 
of  a  holding  in  land,  as  it  frequently  was,  would  be 
to  cure  all  defects  of  title  and  to  create  in  the  grantee 
a  perfect  hereditary  estate  so  far  as  the  claims  of  the 
grantor  and  his  heirs  were  concerned.  The  grant  is 
"to  all  the  freemen  of  our  kingdom  for  us  and  our 
heirs  forever,  to  be  had  and  held  to  them  and  their 
heirs  of  us  and  our  heirs."7  There  was  no  way  known 

*  It  is  hardly  the  place  here  to  consider  in  detail  the  diplomatic  form  of 
the  Great  Charter,  but  it  should  be  noted  that  it  is  not  possible  to  reason 
from  its  use  of  forms  with  any  great  confidence.  It  opens  with  the 
intitulation  and  address  of  a  formal  charter,  and  proceeds  with  the  per 
consilium  clause  of  a  legislative  act,  though  the  description  is  hardly 
that  usual  to  an  ordinary  great  council.  The  effect  of  the  per  consilium 
phrase,  as  far  as  language  goes,  extends  through  the  grant  to  the  church 
but  no  further.  Then  follows  a  formal  granting  clause,  rather  in  the 
form  of  a  release  than  of  a  new  conveyance  (P.  and  M.,  II.  90).  It 
almost  looks  as  if  this  form  of  words  were  chosen  because  the  posses- 
sion, the  seisin,  by  the  barons  of  the  rights  to  which  they  laid  claim  was 
now  recognized,  though  it  had  been  attacked  by  the  king,  but  It  would 
be  impossible  to  assert  that  this  was  really  intended.  This  grant  covers 
all  the  charter  which  follows  and  is  repeated  in  slightly  different  words 
in  clause  63.  There  is  then  added  an  unusual  clause  about  an  oath 
sworn  by  both  the  barons  and  the  king,  more  suitable  to  a  treaty  than 
to  a  charter.  The  final  clauses  which  follow  are  those  of  a  charter 
proper.  The  term  "treaty"  which  has  been  sometimes  applied  to  the 
Charter  as  a  whole  seems  to  me  very  inappropriate,  and  the  idea  implied 
by  it  as  to  the  crisis  and  its  settlement  quite  inaccurate. 
7  This  conveyance  is  so  unreserved  and  binding  that,  if  the  special  privi- 
leges of  Parliament  claimed  by  the  House  of  Commons  in  the  "Protes- 
tation" of  December  18,  1621,  had  been  legitimately  included  among 
the  detailed  rights  specifically  granted  in  Magna  Carta,  there  can  be 
no  doubt  but  that  the  words  then  used  would  have  been  fully  justified: 
that  the  liberties,  franchises,  privileges,  and  jurisdictions  of  Parliament 
were  the  ancient  and  undoubted  birthright  and  inheritance  of  the  sub- 
jects of  England.  Taswell-Langmead,  Const.  Hist,  of  Engl.  (6th  ed., 
1905),  p.  419;  Gardiner,  History  of  England,  IV.  261  (1883). 

[212] 


MAGNA  CARTA 

to  the  barons  of  the  time  of  making  the  concessions 
which  they  demanded  legally  more  binding  upon  the 
king,  or  of  putting  him  under  a  more  secure  pledge 
to  regard  them  as  law  in  his  own  conduct.  Nothing 
is  directly  said  or  implied  here  as  to  whether  the  con- 
cessions were  new  law  or  old.  If  we  insist  upon  the 
form  of  words,  as  we  probably  ought  not  to  do,  it 
would  imply  that  they  were  old.  So  far  as  these  words 
are  concerned,  they  also  imply  a  grant  of  the  king's 
mere  will  as  fully  as  the  amended  form  used  in  1225, 
but  in  the  preamble  they  are  preceded  by  the  technical 
formula  of  legislation  per  consilium,  so  that  it  seems 
fair  to  suppose  that  this  formula  of  grant  was  chosen 
not  to  emphasize  any  freedom  of  action  on  the  part 
of  the  king,  but  to  pledge  him  for  the  future  by  the 
most  binding  formula  which  they  could  select. 

No  question  can  arise  as  to  the  character  of  the  five 
clauses  following.  They  deal  with  the  feudal  inci- 
dents of  relief,  wardship,  and  the  marriage  of  the  heir. 
Clause  2  fixes  the  amount  of  relief  to  be  paid  upon  a 
barony  at  one  hundred  pounds,  and  that  upon  a 
knight's  fee  at  one  hundred  shillings.  The  language 
of  the  clause  implies  that  this  was  the  ancient  legal 
relief,  and  by  inference  that  the  king  in  demanding 
larger  sums  before  admitting  the  heir  to  his  inheri- 
tance had  been  violating  the  law.  So  far  as  the 
simple  knight's  fee  is  concerned,  it  is  possible  that 
this  was  the  case,  but  of  the  barony  it  cannot 
have  been  true,  at  least  of  any  date  later  than 

[213] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

William  I.  Certainly  if  it  was  true  the  proof  is  lack- 
ing, and  the  evidence  against  the  contention  seems 
clear.  The  author  of  the  Dialogus  de  Scaccario  says 
that  the  relief  was  called,  both  popularly  and  at  the 
Exchequer,  a  fine,  which  certainly  means  that  the 
amount  was  fixed  by  a  bargain  in  each  individual  case 
between  the  king  and  the  heir,  the  king  getting  all 
that  he  could,  or  taking  less  as  an  act  of  favour,  and 
the  author  makes  no  distinction  between  the  barony 
proper  and  the  knight's  fee,  except  when  the  knight's 
fee  was  held  of  an  escheat.  He  implies  rather  that 
both  the  major  and  minor  barony  were  treated  alike 
in  this  respect.8  If  we  turn  to  the  corresponding 
clause  in  the  Articles  of  the  Barons:  art.  1,  the  lan- 
guage will  be  found  significant.9  It  is  there  said  that 

8  See  Dial,  de  Scacc.,  II.  10  and  24  (ed.  Hughes,  Crump,  and  Johnson), 
and  notes,  pp.   222-223;   Glanvill,   IX.  4,  4;   McKechnie,   p.   230,   n.   2; 
P.  and  M.,  I.  308.    McKechnie  is,  I  think,  right.     The  passage  from  the 
Dialogus  makes  it  perfectly  clear  that  in  those  baronies  which  the  king 
holds  as  escheats  the  knight's  fee  pays  only  one  hundred  shillings.     But 
it  does  not  say,  and  does  not  imply,  that  this  rule  held  of  any  knight's 
fee  held  in  capite  from  the  king,  that  is,  ut  de  corona.    If  by  the  words 
major  and  minor  baronies  in  the  Dialogus,  c.   10,  the  same  distinction 
is  meant  as  by  the  words  in  Magna  Carta,  clause  14,  then  it  is  clear 
that  the  relief  of  the  knight's  fee  held  in  capite  is  not  more  fixed  than 
that  of  the  barony.     The  relief  of  a  single  knight's  fee  as  recorded  in 
the  Pipe  Rolls  seems  to  be  frequently  one  hundred  shillings  when  held 
directly  of  the  king.     Of  small  holdings  of  more  than  one  knight's  fee 
there  is  no  rule.    It  is,  of  course,  possible  that  the  fixed  Norman  reliefs 
had  been  the  rule  under  William  I.,  and  that  a  part  of  th£  sin  of  William 
II.  was  to  render  the  relief  uncertain — to  make  it  a  fine — and  this  is 
indeed   implied    by   the   Charter   of   Henry    I.,   c.   2.      Cf.    Guilhiermoz, 
Noblesse,  pp.  309-316.    See  P.  and  M.,  I.  312,  n.  1,  for  high  reliefs  under 
Henry  I.    See  a  case  of  enforcement  of  this  clause  in  the  courts,  Madox, 
II.  223  k. 

9  Stubbs,  8.  C.,  pp.  290-296. 

[214] 


MAGNA  CARTA 

the  heir  is  to  have  his  inheritance  per  antiquum  rele- 
vium  exprimendum  in  carta  as  if  they  were  not  sure 
what  the  exact  sum  should  be  and  were  obliged  to 
defer  a  definite  statement  until  they  could  find  out,  or 
come  to  an  agreement  with  the  king. 

While  to  this  extent  c.  2  is  legislative  in  character, 
it  would  be  difficult  to  show  that  in  this  demand  the 
barons  exceeded  their  just  rights.  An  arbitrary 
relief,  as  large  a  sum  as  the  king  might  be  able  to 
squeeze  from  the  heir,  is  indeed  entirely  logical  ac- 
cording to  feudal  principles.  The  vassal's  right  in 
the  fief  is  completely  at  an  end  at  his  death.  He  has 
no  right  which  he  can  transfer  to  any  heir  by  testa- 
ment or  otherwise  as  an  inheritance.  The  king's 
right  of  ownership  intervenes  as  a  real  ownership 
between  the  vassal  and  his  heir.  This  fact  is  recog- 
nized with  peculiar  distinctness  in  the  English  feudal 
law  in  the  king's  right  of  primer  seisin.10  All  this  is 
a  strictly  logical  deduction  from  the  fundamental 
feudal  relationship.  But  in  spite  of  logic  the  right  of 
the  heir  to  succeed  in  the  fief,  the  heredity  of  benefices, 

10  It  is  interesting  that  nothing  is  said  in  Magna  Carta  directly  or  indi- 
rectly of  primer  seisin.  Some  evidence  lingers  in  the  later  sources  of 
feudalism,  both  French  and  English,  which  tends  to  the  conclusion  that 
this  right  was  once  possessed  by  every  feudal  lord.  The  feeling  about 
the  tenant-in-chief's  right  of  inheritance  is  indicated  by  the  saying 
about  William  II.,  that  he  would  make  himself  every  man's  heir.  The 
situation  in  the  matter  of  inheritance,  primer  seisin,  and  relief  in  English 
feudal  law  is  an  instance  of  the  logical  development  of  Anglo-Norman 
feudalism  and  of  the  fairly  even  balance  between  the  rights  of  lord  and 
vassal  which  resulted. 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

as  a  practical  fact,  had  become  firmly  fixed  through- 
out the  feudal  world  and  just  as  firmly  in  England 
as  elsewhere.  The  rear  vassal  could  bring  suit  against 
his  immediate  lord  to  enforce  this  right,11  and  though 
exactly  this  could  not  be  done  by  a  tenant  in  capite, 
it  would  have  been  considered  extreme  injustice  on 
the  part  of  the  king  if  the  heir  were  permanently 
excluded  from  his  inheritance  without  specific  cause. 
In  a  large  part  of  the  feudal  world,  even  the  relief 
had  disappeared,  at  the  still  further  expense  of  logic, 
and  certainly,  judging  by  the  feudalism  of  western 
Europe  as  a  whole,  the  English  baron  was  making 
no  unjust  demand  in  asking  that  the  amount  of  his 
relief  be  fixed. 

Of  clauses  3,  4  and  5,  relating  to  wardship,  much 
the  same  is  to  be  said  as  of  clause  2.  Whether  the 
things  demanded  were  sanctioned  by  ancient  custom 
or  not,  they  were  clearly  reasonable  and  not  beyond 
the  barons'  legitimate  rights.  The  last  portion  of 
clause  4  providing  for  the  transfer  of  a  ward's  lands 
to  the  custody  of  two  men  of  the  fief  itself  when  the 
appointed  custodian  is  exacting  more  from  the  lands 
than  he  ought  and  so  reducing  their  capital  value,  is 
new  and  therefore  legislative.  The  provision  is  a  fair 
one  to  which  there  could  be  no  reasonable  objection, 
but  there  is  no  evidence  that  it  was  ever  put  into 
force.12 

nGlanvill,  IX.  4-6;  Bracton,  f.  252  ff. 
"Bracton,  f.  317;  N.  B.,  pi.  1144,  1201. 

[216] 


MAGNA  CARTA 

Clause  7  in  regard  to  a  widow's  dower  and  man- 
tagium  is  only  indirectly  feudal  in  character  and  re- 
quires no  comment.  The  abuse  to  which  c.  8  refers, 
the  extension  of  the  right  of  marriage  to  the  widow 
of  a  vassal  and  either  putting  her  marriage  up  for 
sale  or  compelling  her  to  purchase  it  herself,  was  one 
clearly  not  justified  by  the  feudal  law  in  general,  nor 
by  any  logical  extension  of  feudal  principles,  except 
in  cases  where  she  possessed  an  independent  feudal 
holding  of  her  own.  That  it  was  of  long  standing  in 
England  is  shown  by  c.  4  of  the  coronation  charter  of 
Henry  L,  and  it  is  possible  that  its  origin  is  to  be 
traced  to  the  practice  adopted,  no  doubt  in  many 
cases,  at  the  Conquest  in  transferring  the  lands  of 
Saxon  lords  to  their  Norman  successors.  There  had 
been  a  similar  extension  of  the  right  of  marriage  in 
England  to  male  heirs,  which  the  charter  does  not 
object  to,  but  the  change  demanded  by  clause  8  is  just 
from  every  point  of  view.  Clauses  9,  10,  and  11,  re- 
lating to  debts,  while  they  indicate  oppressive  methods 
of  the  crown  in  looking  after  its  financial  interests, 
are  non-feudal  and  may  be  passed  over. 

With  clause  12  we  come  to  one  of  the  most  famous 
of  the  clauses  of  the  charter,  one  which  has  sometimes 
been  called  a  constitutional  clause  and  been  supposed 
to  affirm  and  secure  the  right  of  consent  to  taxation. 
What  the  clause  does  is  to  affirm  the  universal  feudal 
right  of  consent  to  all  extraordinary  financial  pay- 
ments, to  all  not  implied  in  the  original  contract  by 

[217] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

which  the  relationship  between  lord  and  man  was 
established.  It  would  have  been  impossible  to  have 
gone  further  than  this  in  1215.  What  we  now  under- 
stand by  taxation  was  just  beginning.  The  first  steps 
towards  it  were  taken  in  the  last  years  of  Henry  II.13 
Considerable  progress  was  made  in  the  reign  of 
Richard  I.  and  more  by  John,  but  neither  the  thing 
nor  the  idea  of  it  was  clearly  enough  in  existence  in 
1215  to  be  made  the  subject  of  such  a  provision  as 
this.  Except  for  two  particulars,  to  be  noticed  later, 
the  clause  states  accurately  the  feudal  principle.  No 
financial  exactions  could  be  made  by  the  king  of  his 
vassals  without  their  consent,  beyond  those  implied 
by  the  original  contract,  whatever  might  be  the  neces- 

13  In  the  Saladin  tithe  of  1188,  granted  by  the  great  council,  and  the  first 
instance  in  England  of  such  a  grant  to  be  paid  by  all  classes  of  the 
population.  Plehn.,  M.  Par.,  p.  8.  This  is,  however,  to  some  extent  an 
ecclesiastical  tax,  suggested  by  the  older  system  of  tithes,  though  the 
state  took  active  part  in  granting  and  collecting  it.  It  thus  forms  the 
transition  from  ecclesiastical  to  state  taxation  of  personal  property. 
See  Cartellieri,  Philipp  II.  August,  II.  5-9,  14-18,  58-69.  It  is  interest- 
ing that  in  the  earlier  action  of  January,  1188,  at  Le  Mans,  on  which  the 
English  grant  was  based,  a  single  assembly  composed  of  barons  of  Nor- 
mandy, Maine,  Anjou,  and  Touraine,  in  which  also,  besides  the  king's 
son,  Richard,  count  of  Poitou,  probably  English  barons  were  present, 
since  the  archbishop  of  Canterbury  and  the  elect  of  Chester  are  named, 
granted  the  tithe  for  these  separate  feudal  states.  Gesta,  II.  30.  See 
also  for  like  action  in  1166,  Gervase  of  Cant.,  I.  198.  This  beginning  is 
continued  in  the  reign  of  Richard  I.,  in  the  taxes  for  his  ransom  in 
1194,  and  in  the  carucage  of  1198  (cf.  Stubbs,  I.  539-540;  548-550;  627- 
628),  and  under  John,  in  the  continuation  of  the  personal  property  tax 
in  1203  and  1207,  and  in  the  annual  collection  of  a  scutage  to  1207. 
Stubbs,  I.  561-562.  These  collections  of  scutage  are  to  be  regarded  as 
steps  towards  modern  taxation,  though  it  is  probable  that  modern  taxes 
on  landed  property  did  not  develop  directly  out  of  scutage. 

[218] 


MAGNA  CARTA 

sities  of  king  or  state.  And  this  was  an  entirely  legit- 
imate principle  according  to  the  feudal  conception 
of  things.  I  believe  that  our  chief  difficulties  in  thor- 
oughly understanding  the  feudal  regime  proper — the 
feudal  organization  of  the  state — are  occasioned  by 
the  fact  that  the  fundamental  relationship  is  one 
which,  it  naturally  seems  to  us,  should  be  economic, 
while  in  actual  feudalism  it  was  not  economic  at  all, 
or  only  in  the  slightest  degree,  but  was  political.  The 
economic  tendency  would  be  to  say  that  feudalism  is 
a  form  of  renting  land,  and  so  it  is,  but  when  we  ex- 
amine it  in  practice  we  find  that  the  rent  was  paid  not 
in  commodities,  not  in  things  of  material  value,  but  in 
political  services,  in  the  services  which  in  the  more 
common  forms  of  society  the  freeman  owes  to  the 
community  as  public  duties.  It  was  through  these 
services  almost  solely,  and  if  there  had  existed  any- 
where a  state  ideally  true  to  the  feudal  type,  it  would 
have  been  in  that  case  solely  through  these  services, 
paid  as  rent  for  land,  that  the  feudal  state  performed 
its  functions,  legislative,  judicial  and  military,  and  in 
such  a  state  the  only  revenue  regularly  provided  in 
the  feudal  scheme  would  be  the  income  of  reliefs, 
of  the  specified  aids,  of  wardships  and  marriages,  and 
the  chance  of  occasional  escheat.14  These  were  implied 
as  a  part  of  the  contract  by  which  the  vassal  relation- 
ship was  created,  and  they  all  find  their  explanation 
not  in  economic  considerations  but  in  the  political 

W  See  note  B  at  the  end  of  the  chapter  (p.  253). 

[219] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

ideas  of  feudalism.  Anything  more  than  these  must 
be  asked  for  by  the  king  and  received  as  a  free  gift, 
gratis  as  the  feudal  documents  continually  say,  gra- 
cious aids  as  they  came  to  be  regularly  called  in 
France.15 

These  points  so  far  as  they  relate  to  feudalism,  are 
no  doubt  familiar  enough,  but  until  a  comparatively 
recent  date  no  one  has  thought  of  applying  them  to 
the  interpretation  of  clause  12.  They  furnish  us,  how- 
ever, in  truth  our  only  means  of  interpretation.  With 
the  exception  of  the  two  points  referred  to  above,  the 
clause  states  nothing  new.  Neither  the  idea  of  taxa- 
tion, of  consent  to  taxation,  nor  of  constitutional  prin- 

15  The  distinction  between  economic  and  political  feudalism  is  not  so 
commonly  recognized  nor  so  clearly  drawn  as  it  should  be.  The  main 
facts  as  to  feudal  payments  with  reference  to  c.  12  are  more  fully 
and  more  accurately  stated  by  McKechnie  than  by  any  earlier  writer, 
but  they  are  not  in  all  particulars  critically  and  logically  applied  in  the 
interpretation  of  the  clause.  See,  for  example,  pp.  166,  169,  n.  1,  173- 
175.  If  we  regard  Magna  Carta  as  a  document  of  1215,  there  is  no 
ground  on  which  certain  of  its  clauses  can  be  distinguished  from  the 
others  and  called  constitutional.  "The  clause  expunged  from  the  charter 
seems  practically  to  have  fixed  the  law,"  P.  and  M.,  I.  350.  Stubbs,  I. 
621.  The  passage  just  cited  from  P.  and  M.,  I.  350,  probably  refers  to 
c.  15.  Neither  the  insertion  nor  the  omission  of  c.  12  or  of  c.  15,  changed 
the  law  in  any  particular  so  far  as  consent  is  concerned.  See  A.  H.  R., 
V.  649,  n.  1  (1900).  The  statement  of  Stubbs,  II.,  Sec.  220,  as  to  the 
rights  secured  by  the  commune  concilium  before  the  end  of  the  reign 
of  John,  mentions  nothing  except  the  ordinary  feudal  rights  of  the 
great  curia  in  all  contemporary  states.  For  a  statement  closely  parallel 
for  the  kingdom  of  Jerusalem,  see  Dodu,  Inst.  Hon.  du  Royaume  de 
J6r.,  pp.  162-164.  The  clause  beginning  ne  failage  in  the  passage  on 
escheators  in  the  Provisions  of  Oxford  (Stubbs,  S.  C.,  p.  391),  is  not  a 
reminiscence  of  c.  12,  but  is  based  on  c.  5,  or  on  this  and  c.  43,  both  of 
which  survived  in  the  charter  of  1225.  See  B£mont,  Simon  de  Montfort, 
p.  120,  n.  2;  M.  Par.,  VI.  353. 

[220] 


MAGNA  CARTA 

ciples  in  themselves,  is  to  be  found  in  the  clause.  It 
simply  states  what  was  already  the  universal  law  of 
the  feudal  world,  and  beyond  this  world  with  the 
ideas  proper  to  it,  it  was  not  possible  for  the  barons 
to  go.  Within  it  the  barons  were  demanding  of  the 
king  in  this  clause  nothing  except  an  honest  and  fair 
regard  for  the  ordinary  obligations  of  the  feudal 
contract. 

Of  two  particulars,  as  has  been  said,  the  statements 
just  made  are  hardly  true  and,  if  we  may  judge  by 
the  treatment  of  the  clause  in  the  reissues  of  the  Char- 
ter, one  of  these  particulars  was  the  real  reason  of  its 
existence,  and  in  the  eyes  of  the  barons  its  only  impor- 
tant portion.  This  is  the  provision  in  regard  to 
scutage.16  Scutage  is  here  treated  exactly  like  an 
"aid,"  but  as  a  matter  of  fact  it  rested  upon  an  entirely 

16  The  clause  regarding  scutage,  c.  8,  in  the  "unknown  charter  of  liber- 
ties" (see  E.  H.  R.,  1893,  p.  291,  and  1894,  p.  121),  is  open  to  far  less 
objection  on  these  grounds  than  the  clause  finally  inserted  in  the  Great 
Charter.  If  the  date  of  the  "unknown  charter"  is  January,  1215,  and 
the  clause  on  scutage  was  deliberately  changed  when  the  Articles  of 
the  Barons  were  drawn  up,  it  was  a  change  for  the  worse.  The  lan- 
guage of  the  "unknown  charter"  is:  Et  si  scutagium  evenerit  in  terra, 
una  marca  argenti  capietur  de  feodi  militis,  et  si  gravamen  exercitus 
contigerit,  amplius  caperetur  consilio  baronum  regni.  McKechnie,  p. 
570.  It  would  be  entirely  competent  to  the  barons  to  agree  with  the 
king  that  scutage  when  taken  should  be  at  a  certain  rate,  and  that  when 
need  to  increase  it  arose  the  increase  should  be  made  by  the  great 
council.  The  rate  for  ordinary  scutages  was  fixed,  however,  by  the 
clause  quite  too  low  and  very  likely  this  was  the  reason  for  changing 
the  statement.  In  this  clause  of  the  "unknown  charter"  consilio  very 
clearly  means  counsel.  If  the  purpose  of  the  barons  in  c.  12  was  merely 
that  they  might  be  able  in  the  future  to  fix  the  rate  at  which  a  scutage 
should  be  levied,  they  should  have  said  so  plainly.  It  is  very  possible 
that  they  meant  no  more  than  this.  Clause  44  of  the  reissue  of  1217 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

different  basis.  An  aid  beyond  the  three  specified, 
is  an  out  and  out  free  gift,  an  addition  by  agreement 
to  any  services  which  the  lord  could  demand;  scutage 
is  a  payment  in  commutation  of  a  service  which  was 
due  under  the  original  contract.  In  strict  law  the 
king  had  the  right  to  insist  upon  the  service  and  to 
refuse  to  take  money  in  its  place,  but  also  the  vassal 
had  an  equal  right  to  insist  upon  the  service  and  to 
decline  the  king's  offer  to  accept  a  payment  in  its 
place.17  A  proposed  scutage,  therefore,  gave  rise  to 
a  right  of  consent  of  one  kind  on  the  vassal's  part 
which  undoubtedly  accounts  for  the  mention  of 
scutages  and  aids  together  in  this  clause,  but  it  is  quite 
a  different  right  from  that  of  consent  to  an  aid.  It 
would  be  quite  proper  for  the  great  council  to  declare 
a  certain  occasion  a  suitable  one  for  the  payment  of 
an  aid  to  the  king  and  such  a  declaration  would  have 
properly  the  same  effect  upon  all  tenants-in-chief 
alike,  but  such  a  declaration  by  the  great  council  in 
regard  to  a  scutage  could  have  in  strict  law  and  in  jus- 
tice no  common  effect.  The  individual  vassal  would 
still  be  entirely  within  his  rights  in  insisting  that  he 

can  very  easily  be  interpreted  as  meaning  a  demand  to  return  to  the 
rate  at  which  scutages  were  levied  under  Henry  II.  It  should  be  noticed 
that  we  have  one  account  of  the  action  of  a  great  council  in  such  a  case. 
Wendover  says  (in  M.  Par.,  II.  484),  that  on  January  2,  1204,  convene- 
runt  ad  colloquium  apud  Oxoniam  rex  et  magnates  Angliae;  ubi  concessa 
sunt  regi  auxilia  militaria  de  quolibet  scuto  scilicet  duae  marcae  et 
dimidia.  Cf.  Ann.  St.  Edmundi,  in  Liebermann,  Anglo-Normanische 
Oeschichtsquellen,  p.  143.  The  Pipe  Roll  shows  the  scutage  to  have  been 
collected  at  this  advanced  rate  (Mitchell  as  in  note  20). 
17  See  the  comment  on  clause  29  below. 


MAGNA  CARTA 

alone  should  determine  whether  in  his  circumstances 
payment  or  service  would  be  preferable.  To  this 
extent  the  barons  were  clearly  going  beyond  their 
legal  right  in  the  provision  concerning  scutage,  not 
merely  with  regard  to  the  king  but  with  regard  to 
the  members  of  their  own  body. 

How  far  considerations  of  this  sort  influenced  the 
later  treatment  of  clause  12  it  is  impossible  to  state. 
We  can  go  no  farther  than  to  say  that  the  insertion 
in  the  original  charter  of  the  clause,  with  its  elabora- 
tion in  clauses  13  and  14,  shows  that  the  matter  was 
regarded  as  one  of  importance.  But  all  these  pro- 
visions go  by  the  board  after  1215  with  only  the  state- 
ment in  1216  that  it  with  some  other  doubtful  mat- 
ters— dubitabilia — had  been  omitted  for  future  con- 
sideration and  in  1217  that  scutage  is  to  be  treated  as 
in  the  time  of  Henry  II.  We  can  add  that  verbal 
changes  in  the  charter  of  1215  as  compared  with  the 
Articles  of  the  Barons,  and  those  in  the  reissues  of 
1216  and  1217,  seem  to  be  generally  in  the  direction 
of  a  more  careful  accuracy  both  in  the  definition  of 
legal  rights  and  in  the  statement  of  exactly  what  is 
meant.18  There  is  certainly  some  ground  for  thinking 
that  the  barons  may  have  been  conscious  that  in  their 
statement  about  scutage  in  clause  12  they  had  gone 
farther  than  they  were  justified  in  going  and  that, 
therefore,  as  scutage  was  the  main  reason  for  the 
clause  the  whole  subject  was  omitted  in  1216,  with  a 

18  See  note  C  at  the  end  of  the  chapter  (p.  256). 

[223] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

general  reference  to  dubitabilia,  because  no  satisfac- 
tory substitute  could  be  thought  of  in  the  hurried 
conditions  of  the  moment,  and  later,  still  troubled  by 
the  difficulty  of  accurate  statement,  they  contented 
themselves  with  the  historical  reference  to  the  time  of 
Henry  II.,  which  did  really  state  vaguely  but  accu- 
rately what  they  wanted. 

The  insertion  of  this  clause,  and  the  evident  impor- 
tance placed  upon  it  would  seem  to  indicate  clearly 
that  in  the  opinion  of  the  barons  changes  had  been 
made  in  the  methods  of  taking  scutage  since  the  time 
of  Henry  II.,  which  were  contrary  to  law  and  justice. 
So  far  as  we  can  tell  from  the  knowledge  of  facts 
which  we  now  have,  these  changes  had  been  made: 
the  rate  had  been  raised  from  the  usual  twenty  shill- 
ings to  two  marks,  once  in  1204  to  two  and  one-half 
marks,  and  once  in  1214  to  three  marks,  and  with  the 
exception  of  1200,  scutages  were  taken  every  year 
from  the  accession  of  John  in  1199  to  and  including 
1206,19  in  1210,  two  at  two  marks  each  in  1211,  and  in 
1214.  In  all  these  cases  there  was  some  pretence  of  a 
campaign  in  the  field  for  which  the  military  service 
of  the  tenants-in-chief  was  due.  "In  1202  and  1203 
no  copy  of  a  general  summons  exists,  but  it  is  probable 
that  one  was  issued.  In  1204  the  host  was  summoned 
but  not  despatched,  yet  a  scutage  was  taken.  In 

19  In  regard  to  the  temporary  cessation  of  scutages  in  1206,  it  should 
be  noticed  that,  at  least  after  the  interdict,  the  revenue  of  the  state 
from  ecclesiastical  baronies  taken  in  hand  must  have  very  greatly 
increased. 

[224] 


MAGNA  CARTA 

1205  only  a  body  of  picked  knights  was  sent  and  a 
scutage  was  taken."  It  would  seem  as  if  the  most  of 
which  the  barons  could  complain  was  the  weight  of 
the  taxation — the  increase  of  the  rate  and  the  fre- 
quency of  the  levy — with  possibly  some  stretching  of 
the  rights  of  the  king  to  determine  the  occasion. 
There  certainly  seems  some  tendency  on  the  part  of 
John  to  use  scutage  as  a  modern  state  uses  an  annual 
tax  on  real  estate.20 

The  second  particular  in  which  clause  12  departs 
from  the  commonplace  is  in  the  provision  with  regard 
to  the  aids  of  the  city  of  London.  As  this  portion  of 
the  clause  gives  rise  to  some  interesting  questions  not 
bearing  directly  upon  the  main  subject  of  this  chapter, 
I  refer  the  reader  for  a  discussion  of  its  interpretation 
to  Appendix  III.  at  the  end  of  the  volume.  It  will 
be  there  seen,  I  think,  that  whatever  we  may  conclude 
its  meaning  to  be,  it  is  based  wholly  on  feudal  ideas. 
Out  of  this  portion  of  clause  12  directly  grows  clause 
13.  A  comparison  of  these  two  portions  of  the  char- 
ter with  article  32  of  the  Articles  of  the  Barons  gives 
evidence,  as  is  shown  in  other  cases  in  note  C  at  the 
end  of  the  chapter,  of  the  comparative  carefulness 
with  which  the  Great  Charter  was  drawn  up.  To 
clause  13  as  it  stands  there  could  be  no  possible  objec- 
tion from  any  source. 

20  From  Dr.  S.  K.  Mitchell's  work  on  Taxation  in  the  Reigns  of  John 
and  Henry  HI.,  New  Haven,  1914,  to  which  I  am  indebted  on  several 
points. 

[225] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

Clause  14  is  another  of  the  clauses  of  the  charter 
which  have  been  called  constitutional  and  it  has  been 
supposed  to  stand  in  intimate  relation  with  the  crea- 
tion of  Parliament  and  to  secure  to  the  nation  its 
representative  system.  Nothing  could  be  further 
from  the  facts.  The  idea  of  the  later  Parliament  was 
quite  impossible  to  the  time  and,  if  it  could  have  been 
explained  to  the  barons  in  1215,  it  probably  would 
have  been  rejected,  and  very  likely  with  indignation. 
Feudal  ideas  in  England  had  declined  in  strength  in 
some  particulars  since  the  middle  of  the  twelfth  cen- 
tury, but  that  decline  had  not  yet  gone  far  enough, 
nor  become  general  enough  to  admit  even  in  thought 
of  the  possibility  of  the  introduction  into  the  great 
council,  the  typical  feudal  assembly,  of  a  whole  class 
not  merely  non-feudal  but  even  servile  according  to 
current  notions.  If  we  omit  the  words  which  follow 
et  sic  facia,  then  the  clause  contains  nothing  new  and 
makes  no  change  of  any  sort.21  It  simply  says  that 

21  It  seems  unnecessary  to  argue  that  the  first  part  of  this  clause  pro- 
duced no  change  of  any  kind,  either  in  the  method  of  the  summons  or 
in  the  persons  to  whom  it  was  sent.  See  McKechnie,  pp.  293-297.  The 
distinction  in  the  form  of  summons  was  probably  a  very  old  one.  See 
Flach,  Origines,  III.  442.  The  summons  to  the  council  merely  followed 
usage  in  other  matters.  The  distinction  in  the  form  of  summons  for 
military  service  is  well  known.  See  the  writ  of  William  I.  to  the  abbot 
of  Evesham  printed  by  Round,  Feud.  Engl.,  p.  304,  which  he  dates  1072. 
See  the  difference  in  the  payment  of  relief  in  Domesday,  I.  280  (Vino- 
gradoff,  Society  in  the  Eleventh  Cent.,  p.  308,  n.  2).  I  doubt  if  the  case 
of  the  summons  of  Thomas  Becket  to  Northampton  in  1164  (Materials, 
III.  51,  II.  391),  can  be  cited,  as  by  Stubbs,  I.  608,  approved  by  Round, 
Peerage  and  Pedigree,  I.  355,  as  evidence  of  the  "double  system  of 
summons,"  for  I  think  the  archbishop  was  not  summoned  on  that  occa- 

[226] 


MAGNA  CARTA 

by  common  council  in  c.  12  was  meant  the  ordinary 
general  assembly  of  feudal  tenants-in-chief,  sum- 
moned in  the  usual  way.  It  is  barely  possible  that 
the  phrase  in  regard  to  the  statement  in  the  writ  of 
the  object  of  the  summons  may  have  been  intended 
to  require  a  more  specific  notice  when  an  extraordi- 
nary aid  was  to  be  asked  for  than  was  usual,  but  this 
is  not  a  necessary  interpretation  and  apart  from  this 
certainly  no  change  was  made  and  the  clause  was  quite 
uncalled  for.  There  is  nothing  corresponding  to  it 
in  the  Articles  of  the  Barons,  and  if  it  had  been  left 
out  of  the  charter  the  whole  procedure  would  have 
been  exactly  the  same,  assuming  that  consent  by  the 
great  council  was  intended  by  c.  12.  It  is  quite  pos- 
sible that  the  reason  for  the  introduction  of  the  clause 

sion  by  the  sheriff  to  be  a  member  of  the  council,  but  to  appear  before 
it  in  its  judicial  capacity  ad  instiantiam  prsedicti  Johannis  pro  eadem 
causa  (Polit.  Hist,  of  England,  II.  285),  or  rather  for  a  slightly 
different  case  growing  out  of  that.  The  passage  quoted  from  the 
Materials,  III.  67,  in  note  4  of  chapter  II.,  would  seem  to  imply  that 
barones  secundoe  dignitatis  were  not  usually  summoned  to  a  meeting 
of  the  great  council  at  that  time.  As  to  when  and  where  the  line  was 
drawn  between  the  major  and  minor  barons,  in  either  military  or  court 
service,  seminary  work  on  the  available  material  in  two  different  years, 
in  connexion  with  other  topics,  leads  me  to  feel  sure  that,  if  the  state- 
ment in  P.  and  M.,  I.  280,  "We  shall  probably  be  nearer  the  truth  if,  in 
accordance  with  later  writers,  we  regard  the  distinction  as  one  that  is 
gradually  introduced  by  practice,  and  one  that  has  no  precise  theory 
behind  it,"  is  to  be  modified  at  all,  it  must  be  in  the  direction  of  a  more 
unqualified  statement  that  there  was  no  fixed  line.  As  to  when  such  a 
line  was  drawn,  I  think  it  always  existed  from  the  beginning  of  feu- 
dalism and  was  never  consciously  established.  As  to  how  it  was  drawn, 
while  there  may  have  been  in  mind  somewhat  vague  principles  to  be 
followed,  I  feel  sure  that  their  application  varied  greatly  both  on 
different  occasions  or  on  the  same  occasion  as  to  different  individuals 

[227] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

is  to  be  found  in  its  closing  phrase.  This  provides 
that  the  business  shall  proceed  upon  the  day  appointed 
according  to  the  counsel  of  those  present  although 
not  all  those  summoned  may  have  come.  Such  a  pro- 
vision can  hardly  mean  anything  but  that  the  decision 
of  the  council  will  be  held  binding  upon  all,  or  that 
it  will  have  the  same  degree  of  force  upon  the  ab- 
sentees as  if  they  had  been  present.  This  has  the  air 
of  being  something  new,  and  if  we  consider  it  to  refer 
to  a  grant  of  extraordinary  aids  only,  or  to  scutage, 
it  probably  was  new.  According  to  strict  feudal  right 
the  individual  baron  would  have  an  absolute  veto  in 
such  a  case  so  far  as  his  own  payment  was  concerned. 
The  new  principle  would  be,  however,  an  easy  and 
natural  derivation  from  the  legislative  right  of  the 
great  council.  Beyond  question  clauses  8-11  of  the 
Assize  of  Clarendon  must  have  been  binding  on  all 

who  are  to  all  appearance  alike.  If  we  may  judge  from  the  returns 
from  the  Norman  inquest  of  c.  1172,  where  the  distinction  seems  to  be 
made,  Red  Book,  II.  before  and  after  p.  632,  it  would  seem  to  be  based 
on  no  principles  at  all.  It  should  be  noticed  that  the  Assize  of  North- 
ampton, c.  7,  and  the  justice  commission  of  1194,  c.  18,  seem  to  pre- 
serve the  right  of  holders  of  quite  small  tenures  to  go  direct  to  the 
curia  regis  with  their  cases.  It  seems  to  me  highly  probable  that  both 
before  and  after  1215  cases  are  numerous  in  which  no  minor  barons  at 
all  were  summoned  to  the  great  council.  I  think  the  clause  made  no 
difference  in  this  respect.  Nor  do  I  think  it  can  be  called  reactionary 
in  any  sense  (McKechnie,  p.  298).  As  to  the  binding  of  the  absent  by 
the  action  of  those  who  are  present  the  case  is  more  doubtful.  It  would 
hardly  seem  that  this  explicit  provision  could  have  been  thought  neces- 
sary if  the  principle  were  already  accepted,  and  yet  besides  the  cases 
of  legislation  referred  to  in  the  text,  a  tax  like  the  Saladin  tithe  must 
have  been  binding  on  all.  Cf.  Oetta,  I.  91;  Stubbs,  I.  607;  II.  Sec.  222; 
Viollet,  Inst.  Polit.  France,  II.  193,  and  below  note  22. 

[228] 


barons,  whether  they  were  present  when  the  Assize 
was  adopted  or  not,  and  clause  12  certainly  contem- 
plates no  more  serious  interference  with  feudal  rights 
than  those  provisions.  Legislation  even  of  the  crudest 
type  would  not  be  possible  unless  this  were  so.  If  the 
object  of  clause  12  was  to  bring  about  a  new  method 
of  determining  when  a  scutage  should  be  paid,  then 
the  inference  from  the  legislative  right  of  the  council 
would  be  not  merely  natural  but  essential  to  the  carry- 
ing out  of  the  plan.  In  that  case  the  concluding  words 
of  clause  14  indicate  that  the  barons  were  not  uncon- 
scious of  the  difficulty  created  by  the  provision  regard- 
ing scutage  in  clause  12.  The  point,  however,  is  one 
that  cannot  be  insisted  upon  because  we  have  no  evi- 
dence as  to  what  the  earlier  practice  was.  As  to  the 
later  practice,  it  would  seem  that  with  the  omission 
of  this  clause  from  the  reissues  of  the  Charter,  this 
provision  fell  to  the  ground  for  a  considerable  time 
at  least.22 

22  If  this  feudal  principle  of  individual  consent  is  pushed  to  its  logical 
conclusion  then  the  provision  of  c.  12  that  an  extraordinary  aid  should 
be  legalized  by  consent  of  the  common  council  was  new,  legislative  in 
character  and  of  doubtful  propriety.  I  do  not  feel  sure  what  should 
be  said  on  the  matter,  though  probably  in  strict  feudal  law  individual 
consent  was  necessary.  If  so,  c.  12  was  legislative,  so  far  forth,  and 
the  part  of  c.  14  relating  to  the  binding  of  the  absent  by  the  decision 
of  the  council  would  be  an  addition  to  the  law,  properly  made  if  sanc- 
tioned by  the  consent  of  both  barons  and  king,  but  beyond  the  compe- 
tence of  the  great  council  to  insist  upon  as  a  right.  As  a  matter  of 
actual  practice  such  a  position  would  probably  have  seemed,  even  in 
1215,  too  great  a  refinement  of  technical  law,  and  it  seems  likely  that 
the  great  council  had  already  gone  so  far  in  many  cases  as  to  declare 
a  given  occasion  a  proper  one  for  the  payment  to  the  king  of  some 

[  229  ] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

Clause  15  has  been  regarded  as  one  of  the  clauses 
of  the  Charter  in  which  the  barons  secured  for  their 
tenants  or  were  forced  to  secure  at  their  own  expense, 
the  same  concessions  which  they  demanded  for  them- 
selves. I  think  that  this  may  have  been  the  case,  but 
it  must  not  be  overlooked  that  there  was  probably  no 
tenant-in-chief  of  the  king  who  was  not  also  a  rear 
vassal,  very  likely  many  times  over,  holding  scattered 
pieces  of  lands  and  even  manors  from  his  fellow 
tenants-in-chief.23  There  would  surely  be  few  of  the 
barons  who  secured  the  Charter  who  would  not  have 
an  immediate  personal  interest  in  checking  any  abuses 
aimed  at  in  clause  15.  It  is  also  true  that  no  baron 
could  possibly  object  to  this  provision  unless  he  pro- 
posed to  make  extraordinary  exactions  unjustly.  In 
one  way  c.  15  may  be  made  to  give  evidence  of 
the  strong  control  under  which  Anglo-Norman  feu- 
dalism had  been  held  by  the  king.  It  seems  natural 
to  infer  from  its  wording,  though  it  is  not  directly 
stated,  that  a  royal  license  was  considered  necessary 
before  a  baron  could  take  an  aid  from  his  own  tenants, 
and  that  in  some  cases  King  John  at  least  had  granted 
such  licenses  for  the  collection  of  extraordinary  aids 
which  the  tenants  had  then  been  forced  to  pay  with 

extraordinary  aid,  at  a  specified  rate,  including  the  new  levy  on  per- 
sonal property,  leaving  the  individual  payment  to  the  individual  baron 
though  under  a  practical  compulsion.  There  is  a  discussion  of  the 
practice  under  Henry  III.  as  to  binding  the  absent  by  the  action  of  the 
council  in  Mitchell  as  referred  to  in  note  20. 

23  See  the  case  of  the  earl  of  Oxford  in  the  court  of  Broughton,  Mait- 
land,  Man.  Courts,  pp.  48-85. 

[230] 


MAGNA  CARTA 

no  other  authorization.  This  may  very  likely  be  true, 
but  if  so  it  was  a  royal  usurpation  with  no  justifica- 
tion in  feudal  law.24  Strictly  interpreted,  the  relation 
between  a  rear  vassal  and  his  immediate  lord,  so  far 
as  it  relates  to  aids,  was  one  of  the  lord's  property 
rights  with  which  the  king  had  nothing  to  do.  The 
lord  would  be  quite  within  his  rights  in  taking  an  aid 
without  any  license  from  the  king  and  no  royal 
license  could  give  him  any  right  to  take  an  extraor- 
dinary aid  without  the  consent  of  his  tenants.  What- 
ever John  may  have  done,  at  least  the  later  practice 
is  in  conformity  with  the  feudal  idea,  for  what  the 
king  does  is  not  to  grant  the  right  to  take  an  aid  but 
to  request  the  tenants  themselves  to  grant  one  to  their 
lord.  The  cases  which  seem  exceptions  in  form  are 
so  infrequent  comparatively  that  it  is  very  improb- 
able that  they  were  real  exceptions.  Such  a  request 

24  Glanvill,  IX.  8,  shows  clearly  enough  that  no  writ  was  necessary  in 
his  time  even  for  distraint.  An  actual  case  of  1182  is  recorded  in  the 
chronicle  of  Jocelin  de  Brakelond  (ed.  Camden  Soc.),  p.  20.  But  see 
Tr&s.  Anc.  Cout.,  XLVIII.  2.  The  regular  principle  is  finely  stated  in 
the  following  notification  of  the  Count  du  Perche  of  1214:  Ad  univer- 
sorum  notitiam  volumus  pervenire,  quod  milites  nostri  de  castellaria 
Bellimensi  talliam  de  feodis  suis  et  hominibus  suis  nobis  debent  tan- 
tummodo  feodaliter,  pro  his  quatuor  rebus  quae  sequntur:  Pro  prima 
militia  nostra;  pro  prima  captione  nostra  de  guerra;  pro  militia  filii 
nostri  primogeniti  viventis;  et  pro  prima  filia  nostra  maritanda. 
Praeter  has  tallias,  nee  a  militum  feodis,  nee  ab  eorum  hominibus,  tallias 
possumus  feodaliter  extorquere.  Et  ne  hujusmodi  libertas  ab  aliquo 
heredum  nostrorum  in  posterum  infringatur,  earn  sigilli  caractere  feci- 
mus  communiri.  Brussel,  Usage  des  Fiefs,  p.  414,  from  Martene,  Ampl. 
Coll.,  I.  1117.  The  aids  mentioned  are  really  only  three,  since  the  lord 
would  take  an  aid  for  his  own  knighting  only  when  he  had  not  been 
knighted  in  the  lifetime  of  his  father,  on  the  same  principle  as  the  aid 

[231] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

from  the  king  may  have  had  in  many  cases  the  prac- 
tical effect  of  a  command,  but  so  long  as  the  writ  went 
no  farther  than  this,  there  is  no  objection  which  could 
be  made  to  it  according  to  the  letter  of  the  law. 

Clause  16  is  a  statement  in  simple  language,  from 
the  vassal's  point  of  view  exclusively  but  quite  cor- 
rectly, of  the  fundamental  feudal  idea,  the  contract 
between  the  man  and  his  lord.  It  is  a  statement  in 
general  terms  of  the  principle  which  underlies  such 
a  specific  regulation  as  that  of  clause  12,  and  indeed 
of  nearly  the  whole  charter,  and  it  would  be  impos- 
sible for  John  to  find  any  ground  on  which  to  object 
to  its  insertion  in  the  charter.  It  implies,  of  course, 
that  the  king  had  been  exacting  in  the  past  more 
service  than  he  was  entitled  to,  but  there  is  no  evi- 
dence of  any  kind  to  connect  it  with  the  barons' 
objection  to  service  in  France. 

Clauses  7-22  and  clause  24  relate  to  the  operation 
of  the  new  royal  judicial  system  as  distinguished  from 

for  the  marriage  of  a  sister.  See  p.  253,  n.  B.  The  principle  of  the 
king's  writ,  even  when  it  has  the  form  of  a  command  is  undoubtedly 
indicated  by  the  following  to  the  tenants  of  the  Constable  of  Chester, 
Pat.  Rolls,  5  John,  m.  1.  Mandamus  vobis  firmiter  praecipientes  quatinus 
efficax  auxilium  faciatis  eidem  constabulario  domino  vestro  ad  redemp- 
tionem  suam.  Ita  quod  inde  vobis  grates  scire  debeamus.  From  Madox, 
I.  615,  y.  "That  these  are  only  letters  of  request"  (Madox,  I.  617),  in 
reality  could  be  shown  from  numerous  cases  on  the  rolls  of  Henry  III. 
See  the  cancelled  writ-  in  favour  of  the  earl  of  Pembroke,  Cal.  Pat. 
Rolls,  1234,  p.  57.  The  principle  is  stated  by  the  king  in  1237  in  the 
grant  to  the  free  men  of  Hovedensire.  Ibid.,  p.  190,  and  it  comes  out 
clearly  enough  in  the  well-known  case  of  Hugh  Tracey — Bracton's 
N.  B.,  pi.  1146 — where  the  lord  has  the  king's  writ  to  take  one  of  the 
aids,  but  it  is  granted  to  him  by  his  men. 

[232] 


MAGNA  CARTA 

the  older  system  of  feudal  and  local  courts.  They 
show  that  on  the  whole  the  barons  were  satisfied  with 
it,  and  willing  to  allow  it  to  go  on.  There  is  no  doubt 
something  of  an  inconsistency,  as  has  already  been 
noticed,  between  their  attitude  in  these  clauses  and 
that  disclosed  in  clause  34.  The  scheme  of  recogni- 
tions provided  for  in  clause  18  could  not  be  carried 
out  without  a  suspension  of  the  baron's  liberty  and 
an  interference  with  his  court  of  much  the  same  kind 
as  that  effected  in  a  different  way  by  the  writ 
Prsecipe.25  It  was,  however,  a  less  direct  interference, 
the  advantages  to  be  derived  from  these  recognitions 
were  obvious,  and  very  likely  the  barons  did  not  per- 
ceive how  logically  the  various  portions  of  the  royal 
system  of  justice  hung  together,  nor  the  full  serious- 
ness of  the  attack  upon  themselves.  One  abuse  of  a 
financial  sort  these  clauses  do  forbid,  the  practice  of 
the  royal  courts  of  amercing  an  offender  not  accord- 

25  It  is  interesting  that  Bracton,  and  the  courts  of  Henry  III.  were  able 
to  argue  that  a  writ  of  cosinage,  though  a  Praecipe  quod  reddat,  was  not 
a  violation  of  Magna  Carta,  c.  34,  because  it  had  the  effect  of  an  assize 
of  mart  d'ancestor  only,  that  is,  it  raised  only  the  question  of  seisin, 
leaving  the  real  question  of  title  still  to  be  tried  under  a  writ  of  right. 
Bracton,  f.  281;  Bracton's  N.  B.,  pi.  1215.  To  a  baron  of  Henry  II.'s 
day  who  understood  fully  the  bearing  of  the  new  royal  justice  upon 
his  baronial  jurisdiction,  if  such  a  one  existed,  this  would  have  seemed 
an  extraordinary  defense  of  a  writ  which  really  took  the  case  out  of 
his  court.  For  he  would  see  that  though  the  trial  of  the  question  of 
title  must  be  begun  in  his  court,  it  could  be  begun  there,  if  we  are 
correctly  told,  only  by  the  king's  writ  and  that  the  process  thus  begun 
would  almost  inevitably  carry  the  case  out  of  his  court  again  before 
there  could  be  any  real  trial  of  the  issue.  See  P.  and  M.,  I.  587.  It 
is  to  be  remembered,  however,  that,  so  far  as  we  can  tell,  there  was 
never  any  decided  opposition  to  this  side  of  the  new  procedure. 

[233] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

ing  to  the  heinousness  of  his  crime  but  according  to 
his  ability  to  pay,  and  whatever  may  have  been  the 
attitude  of  the  barons  towards  the  jury  in  some  of 
its  uses,26  they  were  ready  to  sanction  its  employment 
in  the  Assizes  and  in  fixing  the  amount  of  an  amerce- 
ment, asserting,  however,  expressly  in  clause  21  that 
this  sanctioning  of  the  jury  was  not  to  affect  the 
regular  feudal  right  of  the  baron  to  be  judged  by  his 
peers.  Clause  24  undoubtedly  makes  a  step  in  the 
development  of  the  professional  justice,  but  how 
rapidly  that  development  was  going  on  the  baron 
could  not  yet  fully  understand,  nor  what  it  would 
mean  in  the  end  for  the  feudal  conception  of  his  posi- 
tion in  the  state  as  the  operative  force  by  which  busi- 
ness was  carried  on.  For  the  present  his  interest  was 
in  the  great  development  of  the  idea  of  the  king's 
pleas  which  had  recently  taken  place  and  in  the  new 
methods  of  trying  them.  It  is  altogether  probable 
that  he  would  prefer  that  these  new  methods,  with 
their  suspension  of  his  privileges,  should  be  put  into 
force  by  regularly  appointed  king's  justices,  than  by 
sheriffs,  who  might  be  his  neighbors  or  inferiors,  or 
by  more  subordinate  officers  still,  especially  if  the 
royal  pleas  were  to  be  tried,  as  was  not  infrequently 
the  case,  before  the  king's  representative  sitting  in 
the  baron's  court.  Clause  17  refers  to  the  body  of 

26  The  use  of  the  jury  provided  for  in  c.  20  is  very  near  to  its  primitive 
use  in  early  Carolingian  times.  Action  by  a  jury  is  also  required  in 
c.  48. 

[234] 


justices  appointed  by  Henry  II.  in  1178  to  be  always 
attendant  upon  his  court  for  the  trial  of  cases  as  a 
kind  of  permanent  itinerant  justice  court,  as  has  been 
described.  The  result  of  the  clause,  as  is  well  known, 
was  finally  to  fix  their  sessions  at  Westminster — an 
important  step  in  the  development  of  a  professional 
Common  Pleas  Court.  Clause  17  also  indirectly 
approves  of  the  existence  of  this  court,  if  we  may  now 
call  it  a  court  for  convenience,  but  clause  18  goes  on 
to  say  that  it  shall  no  longer  have  power  to  try  the 
three  assizes,  possibly  because  it  no  longer  goes  about 
as  the  king  does  from  county  to  county,  but  that  they 
shall  be  tried  in  the  counties  in  which  they  arise  by 
justices  on  circuit.  In  a  sense  clause  18  necessitates 
clause  21  because  it  fixes  in  the  new  royal  courts  the 
trial  of  civil  cases  in  which  the  barons  would  be  inter- 
ested as  parties.  To  this,  as  has  been  said,  they 
apparently  did  not  object,  but  when  it  came  to 
amercements,  a  matter  having  some  of  the  same  con- 
sequences that  a  criminal  trial  might  have,  their  feel- 
ing was  different.  That  must  be  referred  to  their 
peers.  In  this  sense  clause  21  is  supplementary  to 
clause  39,  providing  for  the  same  thing  in  civil  cases 
that  it  probably  does  in  criminal.27  While  this  group 
of  clauses  refers  primarily  to  the  new  royal  justices, 
traces  are  not  wanting  of  the  feudal  ideas  and  feudal 

27  This  interpretation  receives  support  from  the  royal  mandate  of  1218- 
19  to  the  itinerant  justices  in  Kent  cited  from  Madox,  I.  529,  o,  in  note 
D  at  the  end  of  the  chapter  on  c.  39. 

[235] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

sensitiveness  of  the  barons.  Clause  21  may  also  be 
interpreted  as  an  afterthought  to  clause  20,  and  as 
such  it  is  an  addition  to  the  Articles  of  the  Barons. 
Clause  20  makes  a  division  of  those  interested  in  the 
itinerant  justice  court  into  three  classes.  The  aliorum 
of  clause  22  shows  that  the  distinction  was  consciously 
made.  It  looks  very  much  as  if  it  occurred  to  those 
who  were  framing  the  Charter,  after  they  had  put 
clause  20  in  shape,  that  by  its  language  earls  and 
barons,  naturally  included  in  the  term  liberi  homines, 
would  be  subjected  to  amercement  in  the  king's  court 
by  the  probi  homines  de  visneto.  To  avoid  this  clause 
21  was  added.  The  reasoning  was  carried  a  step 
further  for  the  benefit  of  the  other  liberi  homines  in 
1216. 

Clause  23  relates  to  abuses  in  the  enforcement  of 
the  ancient  obligation  of  trinoda  necessitas,  probably 
due  to  an  attempt  in  a  small  way  to  relieve  the  finan- 
cial difficulties  of  the  crown.  In  clause  25  we  reach 
the  first  of  the  few  clauses  of  the  charter  in  which  the 
barons  exceeded  their  rights  and  forced  a  concession 
from  the  king  unjust  in  itself  and  to  which  they  could 
show  no  title.  Revenue  from  the  sources,  other  than 
the  manors,  which  went  to  make  up  the  county  ferm, 
had  increased  undoubtedly  from  similar  economic 
causes  to  those  which  had  increased  the  revenues  from 
the  domain  manors.  From  every  point  of  view  the 
king  was  entitled  to  his  full  share  of  this  increase, 
especially  as  these  same  economic  changes  affected 

[236] 


MAGNA  CARTA 

expenses  as  well  as  revenue,  and  were  in  considerable 
part  the  cause  of  the  financial  difficulties  which 
pressed  so  heavily  upon  John.  The  interest  of  the 
sheriff  and  of  the  baronial  class  from  which  the  sheriffs 
were  chosen,  in  maintaining  the  old  ferm  unchanged 
is  obvious,  but  the  demand  was  certainly  unfair  and 
it  was  abandoned  in  the  reissues  and  disregarded 
during  the  reign  of  Henry  III.28 

Clauses  26  and  27  relate  to  the  treatment  of  the 
personal  property  of  free  tenants  deceased  and  have 
for  their  object  to  protect  their  heirs  against  exac- 
tions of  the  crown  in  collecting  debts  due  it,  and  in 

28  See  McKechnie,  pp.  372  ff;  G.  J.  Turner,  Royal  Hist.  Soc.  N.  8., 
XVIII.  289  ff.  The  incrementum,  or  crementum,  appears  in  Domesday 
(I.  64  b;  I.  154  b.  Ballard,  Domesday  Inquest,  p.  75).  It  is  of  con- 
stant occurrence  in  the  reigns  of  Henry  II.  and  Richard,  and  from  the 
beginning  of  John's.  See  for  example,  the  Pipe  Roll  of  22  Henry  II., 
16,  48,  60;  23  Henry  II.,  26,  107,  124.  Madox  cites  many  cases  from 
the  Pipe  Rolls  of  all  three  kings.  See  I.  202,  329,  330;  II.  138,  139,  225, 
226.  An  interesting  case  of  the  increment  of  manors  is  cited  by  Madox, 
I.  192,  from  the  Pipe  Roll  of  6  John.  John  had,  however,  from  1205 
on  demanded  in  certain  cases  an  extra  payment,  the  proficuum,  above  the 
"ancient  incrementum."  If  it  was  this  to  which  the  barons  referred 
in  c.  25,  they  should  have  made  their  meaning  clear,  for  the  two  are 
plainly  distinguished  in  the  Pipe  Rolls  of  John  (Mitchell).  Even  if  the 
proficuum  only  was  referred  to,  the  clause  was  still  unjust  to  the  king 
because  the  contemporary  price  revolution  had  undoubtedly  already 
increased  the  returns  from  the  counties  as  well  as  from  the  manors. 
Of  the  financial  revolution  in  general  much  evidence  might  be  cited. 
See  Chron.  de  Joe.  de  Brakelonda  (Camden  Soc.),  pp.  56-57.  Compare 
note  x  with  note  z,  Madox,  II.  152;  in  the  Pipe  Roll  of  Richard  I.  the 
pay  of  a  knight  is  given  as  one  shilling  per  day,  William  Salt  Arch. 
Soc.,  II.  54;  in  1258,  it  is  four  shillings,  Maitland,  Man.  Courts,  p.  62. 
John  may,  however,  very  likely  have  set  his  demands  too  high.  In 
1205,  the  proficuum  paid  by  twelve  sheriffs  amounted  to  2000  marks 
(Mitchell). 

[237] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

the  claim  laid  to  the  chattels  of  those  dying  intestate. 
While  it  may  be  that  the  demand  in  these  clauses  is 
fair  and  just,  clause  27  at  least  was  legislative  in  char- 
acter and  was  omitted  in  the  later  issues  of  the  charter. 
The  clauses  are  feudal  in  character  only  as  to  the 
origin  of  the  claims  which  the  crown  had  been  enforc- 
ing. Clauses  28,  30,  31,  relate  to  the  prerogative 
action  of  the  king  of  the  nature  of  purveyance  in 
taking  private  property  for  public  uses.  Such  action 
was  naturally  the  occasion  of  many  abuses  and 
whether  fair  or  not  in  any  given  case  would  almost 
invariably  give  rise  to  disputes  and  ill  feeling.  It 
was,  however,  a  right  so  rooted  in  the  past  and  so 
necessary  under  the  financial  conditions  created  by 
feudalism  that  the  feudal  law  itself,  which  ordinarily 
had  no  place  for  prerogative  action,  generally  recog- 
nized it  in  these  cases  in  some  form  or  other  as  the 
right  of  all  suzerains.  The  Charter  does  not  attempt 
to  do  away  with  this  right  but  to  do  away  with  abuses 
under  it,  but  these  were  so  inveterate  that  they 
remained  for  centuries  subjects  of  just  complaint. 

Clause  29  in  regard  to  the  feudal  right  of  castle 
guard  is  very  interesting  because  in  it  the  barons 
stated  clearly  and  with  perfect  accuracy  the  funda- 
mental principle  of  scutage  which  they  had  disre- 
garded in  clause  12.  Xo  knight  was  to  be  compelled 
to  give  money  for  this  service  when  he  was  ready  to 
perform  it  in  person  or  by  a  suitable  substitute  if 
there  was  a  reasonable  cause  for  not  doing  it  himself. 

[238] 


MAGNA  CARTA 

Both  the  occasion  which  would  give  rise  to  the  abuse 
complained  of  and  the  principle  laid  down  for  correct 
action  apply  exactly  to  the  case  of  scutage  and  some 
among  the  barons  would  undoubtedly  recognize  the 
fact  as  soon  as  they  gave  careful  attention  to  the  sub- 
ject. Clause  29  is  wholly  feudal  in  character  and  in 
it  the  barons  were  entirely  within  their  right. 

Clause  34  is  the  one  clause  of  Magna  Carta  which 
reveals  indisputably  a  reactionary  tendency.  Others, 
like  clause  39  in  which  such  a  tendency  may  be  seen, 
have  other  possible  interpretations,  but  there  is  no 
ambiguity  about  clause  34.  It  is  directed  plainly 
against  one  feature  of  the  new  royal  justice  and  is 
an  unqualified  prohibition  of  its  further  operation.29 
For  an  account  of  the  action  of  the  writ  Prascipe,  and 

29  The  new  writs  and  complicated  procedure  which  were  invented  to 
avoid  the  prohibition  in  c.  34,  illustrate  in  one  direction  the  profound 
influence  of  Magna  Carta.  For  there  can  be  no  doubt  but  that  the 
prerogative  system  of  justice  was  so  well  established  by  the  middle  of 
the  reign  of  Henry  III.,  so  generally  regarded  by  clients  as  well  as 
lawyers  as  practically  the  only  method  of  bringing  litigation  regard- 
ing land  to  a  conclusion,  that  all  objection  to  the  writ  Praecipe  in  its 
original  form  would  have  disappeared  and  procedure  would  have  devel- 
oped in  a  much  simpler  form,  if  it  had  not  been  for  the  clause  in  the 
charter.  See  McKechnie,  p.  412;  P.  and  M.,  I.  172;  Bracton's  N.  B., 
I.  135.  Cf.  Bracton's  N.  B.,  pi.  1328,  with  Madox,  I.  793,  d.  Similar 
questions  regarding  the  boundary  line  between  king's  courts  and  baronial 
courts  arose  in  France  with  the  development  of  royal  justice.  See  the 
following  from  an  ordinance  of  1302:  Hoc  perpetuo  prohibemus  edicto, 
ne  subditi,  seu  justiciables  praelatorum  aut  baron um  nostrorum  aut 
aliorum  subjectorum  nostrorum  trahantur  in  causam  coram  nostris 
officialibus,  nee  eorum  causae,  nisi  in  casu  ressorti  in  nostris  curiis 
audiantur,  vel  in  alio  casu  ad  nos  pertinenti.  Ord.  des  Rois,  I.  362. 
Cited  by  Hallam,  Middle  Ages,  chapter  II.,  pt.  II.,  Am.  ed.  I.  241.  Cf. 
fitab.  de  St.  Louis,  II,  c.  xxxii.,  ed.  Viollet,  II.  441. 

[239] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

the  grounds  of  the  barons'  objection  to  it,  reference 
should  be  made  to  the  discussion  of  the  subject  in 
chapter  II.  If  the  question  is  raised  why  the  barons 
should  have  undertaken  to  decree  this  particular  writ 
out  of  existence,  while  they  said  nothing  directly  about 
the  writ  of  right,  and  expressly  approved  of  the  con- 
tinuance of  the  assizes,  both  of  which  had  the  same 
effect  upon  their  courts,  it  would  be  difficult  to  make 
a  satisfactory  answer.  It  hardly  seems  sufficient  to 
say  that  the  writ  Praecipe  was  a  more  blunt  and  undis- 
guised attack  upon  their  judicial  independence,  being 
based  only  upon  a  somewhat  transparent  right  of  the 
king's  to  ask  why  they  had  disobeyed  an  order  which 
in  the  circumstances  must  inevitably  be  disobeyed,  as 
he  must  have  known  when  he  issued  it.  This  is,  I 
think,  however,  all  that  can  be  said  in  explanation. 
If  clause  34  stood  alone  it  would  be  a  slender  founda- 
tion upon  which  to  argue  a  reactionary  tendency  in 
the  Charter  as  a  whole,  but  its  unmistakable  revela- 
tion of  the  baronial  feeling  makes  it  a  strong  sup- 
port to  a  similar  interpretation  of  other  less  plain 
provisions. 

Clause  37  clearly  recognizes  the  right  of  the  king 
to  the  wardship  of  all  the  lands  of  a  minor  heir  of 
whomsoever  held  if  the  heir  was  for  any  portion  of 
his  holdings  a  tenant-in-chief  of  the  king  by  military 
service.  This  was  a  right  of  the  sovereign  clearly 
recognized  by  Norman  practice  though  it  is  to  be 
classed  with  such  rights  as  the  marriage  of  a  male 

[240] 


MAGNA  CARTA 

heir,  or  of  a  widow,  as  extensions  of  ordinary  feudal 
law  in  the  interest  of  the  lord  paramount.  None  of 
these  practices,  which  had  become  established  in  Eng- 
lish law,  whether  they  are  to  be  justified  on  feudal 
principles  strictly  applied  or  not,  did  the  barons  make 
any  attempt  to  abolish.  The  distinction  between 
grand  and  petty  serjeanties  is  hardly  one  of  kind  and 
is  of  no  great  importance;  the  tenure  is  a  frequent 
one,  was  very  convenient,  and  is  distinctly  feudal,  a 
tenure  of  service,  though  not  ordinarily  reckoned  as 
a  military  tenure,  strictly  speaking,  not  paying 
scutage.  It  should  logically  give  rise  to  feudal  ward- 
ship.30 It  was  only  to  the  abuse,  to  a  usurpation  of 
the  king's  in  asserting  this  right  when  he  had  no  feudal 
claim,  or  to  lands  not  feudal  in  character,  that  they 
objected,  and  in  this  they  were  right.  Wardship  of 
this  kind  was  a  feudal  right  only  and  could  be  exer- 
cised only  upon  feudal  grounds.  The  clause  seems 

30  On  the  law  before  1215  see  Glanvill,  VII.  10,  2;  Tres.  Anc.  Cout.,  XL 
3.  Cases  of  the  operation  of  this  clause  in  respect  to  serjeanty  tenures 
were  not  numerous  because  it  would  not  often  happen  that  one  held  a 
fief  of  the  king  by  a  grand  serjeanty  tenure  without  at  the  same  time 
holding  others  by  military  tenure  so  that  the  right  of  prerogative  ward- 
ship would  come  into  operation  in  the  case  of  his  minor  heir,  leaving 
the  serjeanty  out  of  account,  but  there  are  cases  enough  to  show  that 
the  right  was  exercised  in  case  of  grand  serjeanty  tenures.  See  Madox, 
I.  326,  /,  m.,  and  the  cases  cited  in  P.  and  M.,  I.  323,  n.  4,  from  Bracton's 
N.  B.,  pi.  743,  1183,  1231,  1270,  1280;  Cal  Close  Rolls,  1232,  p.  34;  Cal. 
Pat.  Rolls,  1252,  p.  143.  Bracton,  f.  37  (Twiss,  I.  292,  c.  9),  calls  a 
serjeanty  tenure  military  but  he  is  not  thinking  of  the  technical  dis- 
tinction between  them.  Elsewhere  he  distinguishes  between  them,  f.  87  b. 
On  scutage  from  serjeanty  holdings,  see  Madox,  I.  650.  On  the  general 
subject,  see  Round,  The  King's  Serjeants  and  Officers  of  State  (1911). 

[241  ] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

to  imply  that  the  right  referred  was  allowed  in  case 
of  a  grand  serjeanty  tenure,  as  it  certainly  was  later, 
and  that  the  claim  to  exercise  it  had  even  been  made 
in  the  case  of  petty  serjeanties.  The  barons  showed 
in  this  a  greater  moderation  than  those  who  framed 
the  charter  of  Henry  I.,  or  the  difference  may  per- 
haps be  explained  by  the  fact  that  these  rights,  doubt- 
ful at  the  beginning  of  the  twelfth  century,  were  now 
looked  upon  without  question  as  fully  established. 

Clause  39  has  always  been  regarded  as  one  of  the 
most  important  clauses  of  the  Charter  and  this  judg- 
ment is  probably  correct  whether  we  regard  its  pro- 
visions taken  by  themselves,  or  think  chiefly  of  the 
light  which  the  clause  may  be  made  to  throw  upon 
the  general  intentions  of  the  barons  and  the  purpose 
of  the  Charter  as  a  whole.  The  conclusions  which 
we  ought  to  draw  from  it,  however,  depend  upon  the 
establishment  of  its  exact  meaning  and  as  this  can  be 
done,  if  it  is  possible  to  do  it  at  all,  only  by  a  some- 
what minute  analysis,  it  has  seemed  best  to  relegate 
that  portion  of  the  discussion  to  the  notes  and  to  deal 
here  with  the  conclusions  only.31  If  the  interpreta- 
tion which  that  discussion  indicates  as  on  the  whole 
the  more  probable  is  accepted,  viz.,  that  what  the 
barons  had  in  mind  in  this  clause  was  not  chiefly  the 
form  of  trial,  but  was  the  general  body  of  the  law  and 
the  rights  which  it  secured  them,  then  the  provision 
is  to  be  regarded  as  reactionary  in  only  a  slight 

1  See  note  D  at  the  end  of  the  chapter  (p.  262). 

[242] 


MAGNA  CARTA 

degree.32  It  uses  words  which  can  be  later  interpreted 
as  securing  a  judicium  parium  to  the  baronial  class, 
but  this  particular  point  was  not  in  mind  in  1215; 
what  was  then  demanded  was  a  trial  according  to  law 
and  securing  to  them  their  legal  rights.  Taken  in  this 
sense  clause  39  of  Magna  Carta  would  correspond 
somewhat  closely  to  the  general  prohibition  included 
in  Amendment  XIV.  to  the  Constitution  of  the 
United  States :  "nor  shall  any  State  deprive  any  per- 
son of  life,  liberty,  or  property  without  due  process 
of  law."  The  clause  is,  I  think  we  must  say,  strictly 
feudal  in  character;  the  barons  had  in  mind  almost 
certainly  no  one  but  their  own  order,  and  the  court 
which  they  demanded  was  the  king's  feudal  court. 
From  such  a  narrowly  feudal  point  of  view,  ignoring 
the  king's  new  prerogative  courts,  they  were  entirely 
right  in  the  demand  they  made.  Under  the  feudal 
law,  alone  considered,  there  was  no  way  by  which  the 
king  could  rightfully  deprive  them  of  their  property, 
or  personal  liberty,  or  life,  without  a  judicium  parium. 
The  rather  vague  and  general  terms  in  which  they 
stated  their  demand,  while  they  give  us  labour  in  inter- 
pretation, proved  historically  fortunate,  because,  as 
men's  legal  ideas  changed  and  feudalism  disappeared, 
they  could  be  adapted  to  new  conceptions  of  civil 
rights  and  seemed  in  the  end  to  embody  a  universal 

32  That  this  clause  was  reactionary  in  tendency  was,  I  think,  first  sug- 
gested by  Gneist.  See  his  History  of  the  English  Constitution  (trans- 
lation), p.  294,  n.  2  (1891).  The  preface  of  the  original  is  dated  1882. 

[243] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

principle  of  political  liberty.  There  is  a  sense  in  which 
it  is  not  wrong  to  say  that  this  broader  protection  was 
secured  to  us  by  Magna  Carta,  and  also  to  say  the 
same  of  the  other  rights  once  erroneously  supposed  to 
be  directly  intended  by  the  Charter,  like  the  jury  trial, 
Habeas  Corpus,  and  consent  to  taxation.  What  did 
secure  them  to  us  was  in  truth  the  steady  develop- 
ment of  the  limited  monarchy  and  constitutional 
government  which  dates  from  Magna  Carta  and 
without  it  could  hardly  have  been.  In  this  sense  it 
would  not  be  incorrect  to  say  that  the  sentence  quoted 
above  from  the  Constitution  of  the  United  States  is 
a  modern  formulation  of  clause  39. 

Of  clause  42  it  must  be  said  that  it  deprived  the  king 
of  one  of  his  prerogative  rights  exercised  long  before 
and  long  after  this  date.33  The  clause  was  legislative 
in  character,  securing  to  the  barons  a  privilege  which 
they  could  not  demand  as  a  right,  and  it  properly  dis- 
appeared from  the  first  reissue  of  1216  and  was  not 
restored  at  any  later  time.  Clause  43  is  plainly  feudal 
but  its  provisions  are  so  clear  as  to  require  no  com- 
ment. It  was  old  law  and  entirely  just.34  Nor  do 

33  See  the  incident  under  William  I.  recorded  in  Orderic  Vitalis,  III. 
248,  where  the  ground  of  right  for  the  king's  action  in  such  cases — 
deprivation  of  service — is  stated.  Cf.  Liebermann,  Quadripartitus,  Bk. 
II.  Pref.  2;  Oesetze,  I.  542.  The  reference  in  Stubbs,  I.  576,  n.  7,  to  the 
charter  of  April  5,  1200,  should  be  from  Magna  Carta,  c.  41,  not  from 
c.  42.  For  Henry  III.,  see  M.  Par.,  III.  248. 

3*  Dial,  de  Scacc.,  II.  24.  It  seems  to  me  unlikely  that  c.  12  of  the  Peti- 
tion of  the  Barons  of  1258  (Stubbs,  8.  C.,  p.  384),  relates  directly  to  the 
point  of  this  clause.  I  think  it  refers  rather  to  the  grant  of  an  entire 

[244] 


MAGNA  CARTA 

the  clauses  relating  to  the  forests,  44,  47,  48,  call  for 
special  notice  here.  While  not  directly  feudal  they 
concern  a  most  characteristic  feature  of  the  feudal 
age  destined  to  decline  with  the  decline  of  feudal 
society.  The  use  of  the  jury  in  clause  48  as  a  means 
of  carrying  out  several  provisions  of  the  Charter 
should  not  be  overlooked.  Clause  45  refers  to  an 
undoubted  abuse,  but  the  barons  would  have  found 
it  hard  to  justify  their  right  to  make  such  a  demand 
from  the  principles  on  which  they  were  acting  in  the 
main  body  of  the  Charter.  For  once  the  formulation 
in  the  Articles  of  the  Barons,  clause  42,  requiring  a 
positive  promise  from  the  king  seems  preferable  to 
the  negative  prohibition  of  the  Charter.35  Clause  46 
utters  a  complaint  of  the  tenants-in-chief  somewhat 
general  throughout  the  feudal  world.  What  is  asked 
for  rests  upon  the  commonly  recognized  principle 
that  the  foundation  of  an  abbey  can'ed  with  it  the 
rights  of  the  advocatus.  This  is  one  of  the  features 
of  feudalism,  however,  which  the  developing  royal 
power  seems  everywhere  disposed  to  attack  and  gen- 
erally with  success.  The  barons  were  quite  within 
their  rights  in  the  clause  but  the  position  was  one 

escheat  by  the  king,  like  the  grants  so  frequent  from  the  "lands  of  the 
Normans,"  for  which  the  claimant  afterwards  appears. 
33  Louis  IX.  in  the  Mise  of  Amiens  decided  against  the  right  of  the 
barons  to  deprive  the  king  in  the  Provisions  of  Oxford  of  his  power  to 
appoint  whom  he  would  to  the  great  offices  of  state,  but  c.  45  was 
dropped  from  the  reissues  and  it  was  consequently  not  a  part  of  the 
Charter  which  he  declared  to  be  binding  upon  Henry  III. 

[245] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

practically  very  difficult  to  defend.36  Clauses  49  to 
53  and  54  to  59,  are  of  temporary  interest  relating 
to  specific  acts  to  be  performed  by  John  in  undoing 
his  tyranny  or  to  questions  arising  about  the  imme- 
diate application  of  some  provisions  of  the  charter. 
Nothing  need  here  be  said  about  them. 

Upon  clause  60  a  good  deal  too  much  emphasis  has 
been  placed  as  showing  the  spirit  of  the  barons  in 
forcing  the  charter  from  the  king  and  their  attitude 
towards  other  classes.  McKechnie  is  quite  right  in 
his  comment  on  the  clause.  I  would  only  suggest  in 
modification  that  it  could  hardly  have  applied  to  all 
freeholders,  but  only  to  feudal  sub-tenants.  With 
such  an  interpretation  the  clause  to  a  considerable 
extent  reveals  contemporary  ideas  about  the  Charter 
as  a  whole.  If  the  Charter  is  in  the  main  a  restate- 
ment of  feudal  law,  clause  60  follows  as  a  matter  of 
course.  If  the  barons  insist  that  as  suzerain  the  king 
is  bound  by  the  principles  which  they  lay  down,  they 
must  admit  that  they  themselves  as  suzerains  are 
bound  in  the  same  way.  Otherwise  the  law  they  are 
invoking  would  not  be  feudal  law.  If  the  insertion 
of  this  clause  was  called  for  by  the  king,  as  on  the 
whole  seems  hardly  likely,  the  barons  would  have  no 

36  As  to  c.  46,  Valin  maintains — Le  Due  de  Normandie  et  sa  Court,  pp. 
85-88— in  opposition  to  Luchaire,  Manuel,  286,  and  Brussel,  Usage  des 
Fiefs,  p.  810,  that  the  rule  here  stated  to  bind  the  king  in  the  future  was 
the  rule  in  Normandy.  The  facts  do  not  seem  to  be  as  yet  entirely 
established.  Cf.  the  case  recorded  in  the  Cartulary  of  Mont-Saint- 
Michel,  Chron.  Stephen,  Henry  II.  and  Richard,  IV.  340,  No.  35  (Round, 
Cal,  No.  737). 

[246] 


MAGNA  CARTA 

ground  on  which  they  could  refuse.  If  the  Charter 
of  Henry  I.  was  in  any  way  a  model  for  Magna 
Carta,  the  similar  provision  in  clauses  2  and  4  of  that 
document  may  have  suggested  this  clause.  Strictly 
speaking  the  clause  was  unnecessary;  it  would  have 
been  law  without  the  statement  here,  but  as  a  matter 
of  fact  the  barons  in  this  particular  seem  to  have  held 
themselves  no  more  bound  by  the  Charter  than  the 
king.37  The  addition  to  the  clause  in  1217  does  not 
seem  to  me,  as  it  does  to  McKechnie,  inconsistent 
with  its  spirit.  It  is  an  addition  to  make  its  correct 
legal  interpretation  easier. 

On  clause  61  I  have  little  to  add  to  what  has  been 
said  in  chapter  IV.  I  would  repeat  that  the  clause 
rests  upon  a  clear  provision  of  the  feudal  law  of  wide 
existence  and  that  in  all  the  details  of  the  clause  the 
barons  were  well  within  their  rights  as  vassals.  It 
may  be  objected  that  they  had  no  right  to  assume  a 
judicial  function  belonging  theoretically  to  the  king. 
But  in  the  first  place  if  this  were  admitted  it  would 
be  requiring  them  to  modify  their  feudal  right  by  a 
theory  of  kingship  which  had  no  existence  in  the 
feudal  law,  and  which  they  seem  to  be  protesting 
against  elsewhere  in  the  Charter,  and  in  the  second 
place,  if  they  chose  to  limit  their  general  right  of 
insurrection  against  an  unfaithful  suzerain  by  pro- 
viding a  new  chance  of  avoiding  the  necessity  and  by 

37  See  Cal.  Close  Rolls,  1234,  p.  592  (Shirley,  Royal  Letters,  I.  455); 
M .  Par.,  V.  501 ;  and  the  ordinances  of  28  March,  1259,  Rymer,  I.  381. 

[247] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

establishing  a  commission  to  determine  whether  in 
any  specific  case  the  right  really  did  accrue,  their 
action  cannot  be  attacked  on  the  ground  of  its 
legality. 

I  repeat  also  that  clause  61  is  by  far  the  most 
important  in  the  Charter  because  it  reveals  to  us 
more  clearly  than  any  other  clause  the  ground  of 
right  upon  which  the  barons  supposed  themselves  to 
be  acting  in  the  whole  movement,  insurrection  and 
Charter  alike.  It  does  this  because  it  shows  us  upon 
what  right  they  rested  the  "sanction"  of  the  Charter 
as  a  whole  and  upon  what  right  they  provided  for  a 
repetition  of  the  movement  against  the  king  if  it 
should  prove  to  be  necessary  in  the  future.  It  is  to 
my  mind  as  nearly  demonstrated  as  any  historical 
inference  can  be,  from  the  nature  of  the  Charter  as 
a  whole,  as  well  as  from  clause  61,  that  they  found 
this  right  in  feudal  law.  It  was  feudalism  of  the  age 
when  the  feudal  system  was  at  its  highest  point,  feu- 
dalism ideal  and  uncompromising,  in  so  far  as  it 
understood  what  it  was  doing,  which  spoke  in  the 
Charter  and  uttered  its  protest  against  a  new  royal 
power,  a  new  royal  judicium  and  a  new  royal  finan- 
cial system,  hostile  to  itself  as  it  was  beginning  to 
perceive.  The  culminating  age  of  feudalism  in  prac- 
tical affairs  had  indeed  already  passed,  but  of  that 
the  barons  were  not  aware,  and  to  them  it  seemed 
that  their  protest  might  be  effectual,  and  the  line  of 
political  advance  be  changed.  It  was  of  great 

[248] 


MAGNA  CARTA 

moment  to  us  that  they  failed,  but  it  was  of  vastly 
more  moment  that  they  made  the  attempt. 

If  the  results  of  Magna  Carta  were  to  be  so  creative 
in  our  history,  at  the  instant  it  seemed  to  demand  but 
little  change.  Unless  we  look  to  a  future  still  dis- 
tant, we  can  call  it  change  only  by  insisting  on  its 
character  as  reaction.  And  in  spirit,  in  method,  and 
in  principle,  from  the  narrower  point  of  view  of  1215, 
it  was  reaction.  If  we  regard  the  political  necessities 
of  the  time,  or  the  principle  on  which  must  rest  the 
royal  right  to  carry  out  the  innovations  which  had 
been  made,  in  the  light  of  any  political  science  which 
had  up  to  that  time  been  formulated,  we  must  admit 
that  the  king  was  right  and  the  barons  wrong.  Nor 
is  the  cause  of  the  barons  made  better  by  any  fore- 
sight, or  any  guess  at  wider  applications  of  this  prin- 
ciple. Their  interest  was  wholly  personal,  selfish,  and 
temporary.  If  instead  of  regarding  principle  we  look 
to  the  side  of  forms,  the  only  change  we  can  find  is 
also  reaction.  The  law  which  the  Great  Charter 
asserts  is  old  law.  The  things  which  are  new  in  it, 
apart  from  those  which  are  wrong  and  quickly  aban- 
doned, are  unessential  details  or  methods  of  enforcing 
rights.  What  was  new  at  the  time  were  the  royal 
innovations,  as  in  the  judicial  system  and  taxation, 
and  if  we  judge  them  by  what  increasing  business  and 
the  needs  of  government  called  for,  or  by  the  rapid 
social  transformation  which  was  taking  place  in  the 
community,  we  must  call  them  advance  and  the  baro- 

[249] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

nial  demands  reactionary.  It  is  the  unintended  result 
which  followed  in  course  of  time,  which  gives  to  the 
rebellion  of  1215  its  right  to  be  regarded  as  the  first 
step  in  the  formation  of  the  English  Constitution. 

It  is,  therefore,  not  in  details  of  form  and  law  that 
the  permanent  influence  of  the  Great  Charter  is  to  be 
sought.  These  almost  wholly  disappeared,  or  where 
they  became  permanent  features  of  Anglo-Saxon 
public  law,  it  is  in  a  meaning  greatly  broadened  by 
later  experience.  To  repeat  what  has  been  already 
said,  the  controlling  and  moulding  power  of  the 
Charter  in  English  history  is  to  be  found  in  two 
things :  First  of  all  in  the  principle  upon  which  it  rests 
that  there  is  a  definite  body  of  law  by  which  the  king's 
action  is  bound,  and,  second,  that,  if  he  insists  upon 
violating  it,  he  may  be  compelled  by  force  to  desist. 
It  is  not  asserted  that  the  barons  of  1215  were  con- 
scious of  this  as  an  abstract  principle,  or  that  they 
could  have  formulated  it  in  precise  terms.  They  did 
not  attempt  any  theoretical  justification  of  their 
action;  they  could  not  even  feel  the  need  of  it  in  the 
stage  of  political  development  in  which  they  stood. 
In  any  case  their  ideas  seem  all  to  have  been  concrete 
and  practical,  and  in  their  remedies  they  went  no 
further  than  the  correction  of  the  specific  abuses  from 
which  they  suffered,  and  the  difficulty,  also  specific, 
of  securing  the  king's  observance  of  his  promises. 
But  it  seems  clear  that  the  Charter  and  the  whole 
movement  of  which  it  formed  a  part  proceeded  on  the 

[250] 


MAGNA  CARTA 

supposition  that  the  existing  law  already  bound  the 
king,  that  many  acts  of  his  had  been  illegal,  such  as 
he  was  bound  not  to  commit,  and  that  the  existing  law 
also  gave  to  the  barons  full  right  to  insist,  to  the 
point  of  armed  rebellion  if  necessary,  that  these  acts 
should  cease  and  that  for  the  future  the  king  should 
observe  the  law,  and  in  such  an  understanding  of  their 
rights  under  the  law  as  it  existed,  the  barons  were 
undoubtedly  correct.  I  shall  now  endeavour  to  show 
that  it  was  this  principle  which  gave  the  Charter  its 
influence  in  the  period  immediately  following,  and 
ultimately  its  great  place  in  English  history.  In  the 
slowly  developing  crisis  of  Henry  III.'s  reign,  what 
men  saw  in  the  charter  in  its  bearing  on  their  differ- 
ences with  the  king  was  not  a  body  of  specific  law,  but 
that  the  king's  action  was  bound  and  limited,  and  that 
the  community  possessed  the  right  to  coerce  him. 


[251] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 
NOTE  A. 


(Page  207.} 

THE  relation  in  which  Magna  Carta  stands  in  spirit  and  in  form 
to  the  series  of  constitutional  documents  which  it  opens  is  plain. 
The  historical  situation  which  it  presupposes  is  this,  to  state  it 
in  a  generalized  form.  The  king  has  been  doing  a  number  of 
things  which  are  in  violation  of  the  law  which  he  is  bound  to 
keep.  That  at  least  is  the  fundamental  assumption;  I  am  not 
vouching  for  its  historical  accuracy  in  every  particular.  Oppo- 
sition has  arisen  to  these  acts  of  the  king's  which  are  alleged  to 
be  contrary  to  the  law.  Those  who  have  an  influence  upon  the 
carrying  on  of  public  affairs,  enough  of  them  to  insure  the  execu- 
tion of  their  plan,  are  determined  that  these  acts  shall  cease  and 
that  the  king  shall  be  formally  pledged  not  to  repeat  them.  A 
document  is  drawn  up  which,  directly  or  by  implication,  states 
what  the  king  had  done  that  he  should  not  and  pledges  him,  in 
a  legally  binding  form  and  one  that  can  be  clearly  understood 
by  any  one  who  reads,  not  to  do  these  things  for  the  future.  It 
may  be  added  that  this  document  comes  to  be  looked  upon  after 
a  time  as  a  part  of  the  fundamental  law  of  the  land,  in  a  more 
or  less  ideal  light.  It  is  hardly  necessary  to  point  out  how  so 
general  a  statement  as  this  of  what  Magna  Carta  is,  applies  to 
the  other  documents  in  the  series.  If  we  go  on  to  the  next  one 
of  them  in  chronological  order  which  holds  a  place  in  common 
remembrance,  the  Petition  of  Right  of  1628,  the  gap  in  time  is 
a  long  one.  It  is  bridged,  however,  somewhat  imperfectly  to  be 
sure,  by  the  documents  of  1258,  by  the  Ordinances  of  1310-11, 
and  by  the  Petition  of  31  Articles  of  1406.  And  we  know  that 
in  1628  Magna  Carta  was  held  in  vivid  remembrance  through  the 
discussions  of  the  preceding  twenty  years,  whether  the  historical 
arguments  founded  upon  it  were  in  every  case  justified  or  not. 
It  is  at  any  rate,  whether  by  any  conscious  imitation  may  be 
doubted,  exactly  what  is  stated  above,  which  is  attempted  in  the 


MAGNA  CARTA 

Petition  of  Right.  Certain  four  acts  of  the  king,  which  were 
thought  to  be  of  great  importance,  are  alleged  to  be  illegal,  and 
the  king  is  pledged  in  legal  form  to  do  them  no  more.  Exactly 
the  same  thing  is  true  of  the  corresponding  portion  of  the  Bill 
of  Rights.  The  list  of  misdeeds  is  longer,  the  formulation  is 
sharper  and  more  concise,  and  the  legalizing  form  is  more  usual 
than  in  the  Petition,  and  in  these  respects  the  Bill  of  Rights  is 
more  close  to  the  model  of  the  Charter,  but  in  principle  they  are 
all  alike.  When  we  come  to  the  Declaration  of  Independence  of 
1776  the  departure  from  the  traditional  form  seems  more  essen- 
tial, but  it  is  not  so  in  reality.  In  the  fundamental  assumption 
on  which  the  Declaration  rests  and  in  the  enumeration  of  illegal 
acts  the  tradition  is  strictly  followed.  But  when  it  comes  to  the 
remedy  proposed  there  is  an  important  departure  from  prece- 
dent. This  little  corner  of  the  empire  could  hardly  hope,  or  even 
propose,  to  revolutionize  the  whole,  or  impose  its  view  of  the 
facts  upon  the  rest.  All  it  could  do  was  to  say:  these  illegal  acts 
affect  us  so  vitally  that  in  our  judgment  the  king  is  no  longer 
fit  to  be  the  ruler  of  a  free  people  and  we  must  declare  ourselves 
independent.  Whether  the  actual  facts  justified  the  colonists  in 
this  conclusion  or  not,  does  not  enter  into  the  present  question. 
It  seems  to  me  impossible  to  deny  that  in  spirit  and  in  form,  as 
far  as  a  form  could  be  followed  in  the  conditions,  the  Declaration 
of  Independence  belongs  in  the  series  which  opens  with  Magna 
Carta,  and,  except  for  the  speculative  political  philosophy  with 
which  it  opens,  in  which  it  follows  a  fashion  of  its  time,  it  is 
worthy  of  the  place  which  it  holds  in  that  serieSt 

«  NOTE  B.     FEUDAL  AIDS 

(Page  219.} 

ON  the  statements  in  the  text  in  regard  to  feudal  payments  refer- 
ences would  hardly  seem  to  be  necessary,  the  principles  are  so 
well  known.  Glanvill,  IX.  8,  though  concerned  with  mesne  lords 
only,  states  them  plainly  enough.  The  Leges  Edwardi  Confes- 
soris,  11,  2,  give  the  practice  under  William  II.  While  the  word 

[253] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

"gratis"  is  not  common  in  English  documents,  it  is  used  of  a 
grant  to  the  king  in  letters  patent  of  May  4,  1236,  Madox,  I. 
607  b,  and  in  the  case  of  aids  from  rear  vassals  to  their  lords  in 
the  documents  printed  in  Appendix  A,  Red  Book  of  the  Exche- 
quer, p.  cclxvii.,  for  instance  Nos.  4  and  5,  and  see  note  24  above. 
The  documents  of  the  reign  of  Henry  III.,  as  is  well  known, 
are  full  of  equivalent  expressions.  See  the  de  mera  gratia  et 
liberalitate  sua  of  the  letters  patent  to  the  clergy  in  1224, 
Rymer,  I.  175,  W.  of  Cov.,  II.  255,  or  the  de  mera  liberalitate 
sua  et  non  alia  ratione  of  similar  letters  in  1243,  Madox,  I.  609  c. 
This  is  said  even  of  the  aid  of  1235  to  marry  the  king's  sister 
(Madox,  607  b,  cf.  Stubbs,  S.  C.,  p.  364)  though  this  was  an  aid 
sanctioned  by  feudal  precedent,  when  it  had  not  been  taken  by 
the  father  during  his  lifetime,  and  possibly  one  that  could  have 
been  taken  without  a  special  grant;  on  this  point  see  the  returns 
from  the  barony  of  Henry  de  Ria,  Red  Book  of  the  Exchequer, 
p.  cclxxiii;  and  the  following  from  a  testament  of  1254:  Item 
universis  hominibus  terre  mee  remitto  et  quitto  per  me  et  suc- 
cessores  meos  omnes  tallias  et  ademptiones  forsatas  et  totas, 
preterquam  in  IV  casibus,  scilicet  si  ego  vel  heredes  mei  trans- 
fretaremus,  vel  heres  meus  esset  novus  miles,  vel  maritaret  filiam 
vel  sororem  suam.  Hist.  Gen.  de  Languedoc,  VIII.  (Preuves} 
Col.  1330.  The  pains  frequently  taken  in  grants  to  Henry  III. 
to  guard  against  the  estaV>1:~^ment  of  a  precedent  indicates  the 
fear,  as  is  sometimes  almost  expressly  stated,  lest  a  special  grant 
be  turned  into  a  customary  payment  for  which  no  consent  need 
be  asked.  See  Stubbs,  S.  C.,  pp.  364,  367,  and  cf.  the  liberi 
adjutarii  in  contrast  to  a  tallage  of  M.  Par.,  IV.  95.  The  prin- 
ciple of  the  extra  aid  and  its  relation  to  the  regular  feudal  ser- 
vices is  clearly  indicated  in  an  actual  case,  with  reference  to  the 
ecclesiastical  tenth  to  be  paid  to  the  king,  in  the  fourth  paragraph 
of  the  gravamina  of  the  clergy  in  1255.  Ann.  Burton,  p.  36l. 

The  aid  was  the  payment  upon  the  political  side  of  feudalism 
which  comes  nearest  in  idea  to  modern  taxation  and  also  to  a 
payment  for  economic  reasons.  It  was,  however,  never  looked 
upon  as  an  economic  return  in  the  age  of  true  feudalism,  but  as 

[254] 


MAGNA  CARTA 

an  act  or  service,  though  not  a  service  in  the  technical  sense,  in 
which  the  tenant  came  to  the  aid  of  his  lord  on  occasions  affect- 
ing the  family  of  the  lord  or  his  own  person,  in  the  regular  aids 
specified  before  hand,  and  occurring  only  at  long  intervals. 
Theoretically  they  were  all  occasions  when  the  lord  was  called 
upon  for  some  extraordinary  expense  incidental  to  his  position, 
though  the  extraordinary,  specially  granted  aids  sometimes  depart 
from  this  principle.  The  aid  was  moreover  a  service  often  con- 
sidered, even  in  case  of  the  three  regular  aids,  to  be  voluntary 
and,  like  the  relief,  not  of  the  nature  of  the  tenure,  that  is,  a 
failure  of  payment  in  these  cases  led  not  to  confiscation  but  to 
distraint.  Glanvill,  IX.  8,  3;  Bracton,  f.  36  b;  Viollet,  ttabl.  de 
St.  Louis,  IV.  18-20;  cf.  Flach,  Origines,  I.  343;  P.  and  M.,  I. 
349-351. 

In  the  ideal  feudal  state,  besides  the  revenue  regularly  pro- 
vided for  in  the  feudal  scheme,  there  would  exist  those  sources 
of  income  which  were  in  truth  the  main  dependence  of  the  state 
in  the  feudal  age,  some  economic  in  character,  some  in  part  at 
least  political,  mostly  inheritances  from  the  past:  the  returns 
from  domain  manors,  from  fines,  amercements,  and  forfeitures, 
from  tolls  and  customs,  from  tallages  and  various  regalian  rights, 
some  of  which  were,  however,  feudal  in  the  strict  sense.  Nor 
should  we  overlook  the  meeting  of  numerous  expenses  of  all  kinds 
by  serjeanty  tenures  which,  though  they  were  regarded  as  free 
tenures,  were  not  military  proper.  As  to  the  omission  of  tallage 
from  clause  12,  to  which  attention  has  been  called  (McKechnie, 
p.  279),  it  would  have  been  clearly  beyond  the  barons'  right  to 
insist  that  it  should  be  included  in  the  clause,  if  the  word  tallage 
is  given  its  technical  meaning.  They  were  entirely  within  their 
rights  in  demanding  that  their  consent  should  be  had  to  extraor- 
dinary aids,  but  tallage  is  quite  a  different  matter,  for  which 
consent  was  never  necessary.  Of  course  the  king  could  have 
made  such  a  concession,  if  he  had  been  willing,  and  then  it  would 
have  been  binding  upon  him,  but  there  are  few  cases  in  the 
Charter  in  which  the  king  is  made  to  yield  something  which  the 
barons  had  no  color  of  right  to  demand. 

[255] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

NOTE  C.     THE  DIRECTION  OF  CHANGE  IN  THE  REISSUES  OF  THE 

CHARTER 

(Page  223.) 

THE  question  of  the  purpose  which  led  to  the  omissions  and  modi- 
fications in  the  reissues  of  1216  and  1217,  if  it  can  be  said  that 
they  were  controlled  by  a  single,  general  purpose,  is  one  of  much 
importance  as  bearing  upon  the  character  of  the  original  charter 
and  the  intentions  of  the  barons  in  it.  If  it  is  true  that  the 
changes  made  in  the  reissues  were  in  the  direction  of  more  exact 
statement  and  that  there  is  a  tendency  to  drop  unwarranted  and 
doubtful  claims,  the  theory  is  strengthened  that  in  the  original 
charter  the  barons  intended  to  state  the  law  accurately  and  were 
not  trying  to  take  unjust  advantage  of  the  king.  In  the  reissue 
of  1216,  fifteen  clauses  were  modified,  twenty-two  were  omitted 
altogether,  and  one  new  clause  was  added.  In  1217,  twelve 
clauses  of  the  preceding  year  were  modified,  none  was  omitted, 
but  seven  new  clauses  were  added.  The  modifications  made  by 
the  original  charter  in  the  Articles  of  the  Barons  should  also  be 
considered  in  some  cases.  The  successive  changes  may  easily 
be  studied  in  Stubbs,  Select  Charters,  or  in  Bemont,  Chartes  des 
Libertes  Anglaises.  Of  the  clauses  modified  in  1216,  six,  9,  13, 
22,  46,  47,  and  56,  were  so  slightly  changed  that  they  may  be 
disregarded.  Of  the  others,  c.  3  is  made  much  more  explicit  in 
1216;  the  law  as  laid  down  in  Glanvill,  IX.  4,  2,  is  more  fully 
stated  and  a  provision  is  added  that  the  minor  shall  not  escape 
from  custody  by  being  made  a  knight.  Clause  5,  which  is  much 
improved  over  art.  3  of  the  Articles  of  the  Barons,  is  further 
changed  in  1216,  as  if  from  some  observation  of  the  working  of 
the  original,  at  least  from  a  careful  study,  to  avoid  a  demand 
upon  the  guardian  for  more  than  he  had  received  which  might 
be  possible  under  the  first  wording.  The  church  is  also  put 
under  the  same  provision  and  the  statement  is  added  that  eccle- 
siastical custodies  ought  not  to  be  sold.  The  changes  in  c.  6  are 

[256] 


MAGNA  CARTA 

interesting.  In  the  Charter  a  demand  of  the  Articles  unwar- 
ranted by  the  feudal  law,  that  the  marriage  of  the  heir  should 
be  made  with  consultation  of  his  nearest  relatives,  is  "softened 
down"  to  a  requirement,  equally  without  support  in  law,  that  the 
nearest  relative  should  be  notified.  In  1216  the  attempt  to  add 
to  the  law  is  abandoned,  and  the  clause  about  disparagement, 
which  is  all  that  the  law  warrants,  is  left  to  stand  alone.  Clause 
7,  which  is  more  exact  than  art.  4  of  the  Barons,  is  further 
modified  in  1216,  as  if  from  experience,  by  providing  that  the 
widow's  right  to  remain  forty  days  in  her  husband's  house  shall 
not  apply  to  the  case  of  a  castle,  no  doubt  because  it  might  be 
needed  for  public  defense,  though  instead  some  proper  house 
shall  be  provided  for  her.  In  1217  the  clause  is  made  still  more 
explicit.  The  widow's  right  to  remain  in  the  capital  messuage 
is  to  be  interfered  with  only  when  it  is  a  castle;  she  is  to  have 
her  rational  estovers  until  the  dower  is  assigned;  and  a  specific 
provision  about  the  dower  is  added  from  the  old  law,  Glanvill, 
VI.  1.  Even  more  interesting  is  the  history  of  c.  20.  The 
Charter  greatly  improves  upon  the  Articles.  In  1216  a  single 
word  only  is  added,  proborum  hominum,  becomes  proborum  et 
legalium  hominum,  but  the  change  removes  the  danger  that  the 
liber  homo  may  be  amerced  by  villani  on  the  jury.  In  1217 
another  difficulty  was  dealt  with.  After  villanus  the  words 
alterius  quam  noster  were  added.  It  probably  never  was  intended 
to  introduce  this  provision  into  the  manorial  courts  of  the  royal 
domains,  or  into  any  except  the  new  royal  courts.  It  is  hardly 
possible  that  anything  more  was  intended  by  the  clause  in  its 
original  form  than  is  finally  expressed  with  exactness  in  1217, 
but  it  underwent  steady  improvement  in  every  restatement,  and 
certainly  the  thought  is  riot  unjustified  that  the  last  changes  at 
least  may  have  been  due  to  attempts  to  interpret  the  clause  other- 
wise in  the  courts.  In  the  case  of  c.  28,  it  would  seem  again  as 
if  the  changes  were  due  to  actual  experience,  though  the  decided 
improvement  in  diction  of  the  Charter  over  the  Articles  should 
not  be  overlooked.  The  necessity  of  provisioning  a  castle  may 
be  a  pressing  one  and  to  provide  for  such  cases  the  royal  officer 

[257] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

may  have  a  delay  of  three  weeks  in  payment  without  the  consent 
of  an  owner  who  dwells  in  the  village  where  the  castle  is,  a 
limitation  which  seems  to  imply  provisioning  in  haste  from  the 
immediate  neighborhood,  and  in  1217  this  allowed  delay  is  ex- 
tended to  forty  days.  Clause  30  is  changed  in  1216  to  specify 
exactly  the  anciently  determined  rate  of  compensation.  Clause 
41  is  modified  to  reserve  a  royal  right  of  action  in  certain  cases 
doubtless  for  the  same  reasons  which  lead  to  the  omission  of  c. 
42.  It  may  be  added  that  the  principle  embodied  in  c.  43  is 
carried  a  step  further  in  1217. 

Of  the  change  in  c.  1,  I  hardly  know  what  should  be  said.  A 
portion  of  the  clause  had  to  be  omitted,  or  reshaped,  because  of 
the  reference  to  King  John,  and  this  may  be  the  only  reason  for 
the  change.  It  should  be  noticed  that  this  provision  is  not  in- 
cluded among  the  dubitabilia  referred  to  in  c.  42  in  1216,  doubt- 
less because  no  demand  of  doubtful  justice  was  made  of  the  king 
in  the  original  clause.  The  theory  of  the  law  granted  the  church 
all  that  the  clause  contained,  or  that  was  granted  by  the  charter 
of  John  of  November  21,  1214.  The  violation  of  freedom  of 
election  was  a  matter  of  customary  practice,  not  a  recognized 
right  of  the  king's.  It  seems  to  me  very  doubtful  if  the  special 
charter  of  John  of  November  21,  to  the  church,  would  have  been 
regarded  as  binding  his  successor.  There  is  indirect  reference 
to  his  heirs,  as  if  they  were  supposed  to  be  included,  but  there 
were  no  formal  words  of  grant  which  would  bind  any  one  except 
John  himself.  I  feel  very  sure,  however,  that  the  words  omitted 
from  the  reissue  were  not  dropped  because  of  any  intention  of 
interfering  with  the  freedom  of  election  of  prelates.  Practice 
during  the  reign  of  Henry  III.,  in  almost  all  cases  certainly, 
seems  to  have  been  in  accordance  with  the  promise  of  c.  1,  of 
1215,  or  of  the  special  charter  of  John.  M.  Par.,  III.  493-495, 
probably  shows  the  extent  and  method  of  an  extreme  case  of 
royal  interference.  Of  some  influence  at  work  in  these  alterations 
in  1216  hostile  to  the  national  church  (McKechnie,  p.  167  n.)  I 
cannot  find  any  evidence. 

Certain  other  clauses  which  escaped  modification  in  1216  were 

[258] 


MAGNA  CARTA 

changed  in  the  reissue  of  1217,  but  of  this  reissue  I  think  we  may 
say  that  in  the  general  tone  of  its  changes  and  additions  there  is 
some  indication  that  the  strain  of  the  conflict  with  the  king  has 
been  relaxed  and  that  problems  of  everyday  government  are 
having  a  larger  share  of  attention  than  in  1215.  A  good  pro- 
portion of  what  is  new  to  the  charter  is  legislative  in  character, 
that  is,  new  to  the  law  as  well  (13,  14,  15,  26,  39,  42,  43).  There 
seems  also  a  tendency  to  use  the  opportunity  in  the  interest  of 
the  baronial  class  (26,  35,  39,  40,  43,  46,  and  I  think  possibly 
13,  14,  and  42) — a  tendency  which  shows  itself  at  least  as  plainly 
in  the  Forest  Charter.  The  changes  which  were  made  in  1217 
in  clauses  18  and  19  of  the  original  charter  were  undoubtedly  in 
the  direction  of  a  relief  from  the  burden  of  too  frequent  and 
exacting  judicial  service.  Clause  38  is  broadened  in  statement. 
Clause  39  is  enlarged  to  say  that  the  disseisin  without  judgment 
from  which  the  free  man  is  protected  includes  not  merely  his 
land  but  his  "liberties  and  free  customs"  as  well — an  addition 
plainly  in  the  interest  of  the  greater  barons,  but  one  strictly 
legitimate,  making  the  clause  more  complete  and  exact.  To  c.  43 
is  added  a  sentence,  very  badly  expressed,  if  we  have  it  as  first 
written,  to  say  that  in  the  application  of  the  principle  laid  down 
in  c.  37  (1215)  the  tenant  of  a  barony  in  the  king's  hands  shall 
not  be  regarded  as  holding  in  capite  (Bracton,  f.  87  b)  ;  an 
entirely  legitimate  addition,  changing  no  existing  right.  While 
the  language  of  c.  46  is  made  somewhat  more  exact  in  1217, 
possession  is  added  to  a  charter  or  ancient  tenure  as  sufficient 
proof  of  the  right  to  the  patronage  of  an  abbey.  There  can  be, 
I  think,  no  reasonable  doubt  but  that  the  framers  of  the  clause 
intended  that  antiquam  should  qualify  possessionem  as  it  does 
tenuram.  If  so,  it  would  represent  fairly  the  baronial  view  of 
the  existing  law,  but  this  view  was  never  fully  accepted  by  the 
crown  (Stubbs,  S.  C.,  p.  384,  Petition  of  the  Barons,  c.  11 ;  Mait- 
land,  Man.  Courts,  p.  Ixxvii.). 

There  should  be  noticed  here  the  attempt  made  in  c.  44  of 
this  reissue  to  restate  the  point  of  c.  12  of  the  original  charter, 
but  I  do  not  think  the  barons  drew  up  this  clause  in  1217  with 

[259] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

any  feeling  that  they  had  solved  the  difficulty.  Their  statement 
has  rather  the  appearance  of  an  effort  of  despair.  "We  don't 
know  what  to  say;  let  us  say  this."  Nor  does  it  seem  to  me 
likely  that  they  knew  very  much  about  how  scutage  had  been 
taken  in  the  time  of  Henry  II.  They  called  for  this  as  the  Laga 
Edwardi  had  been  called  for  in  the  coronation  charter  of  Henry 
I. — the  ideal  method  is  found  in  the  time  of  some  famous  king  in 
the  past. 

The  general  trend  of  the  omissions  of  entire  clauses  in  the 
reissues  is  even  more  evidently  in  the  direction  of  a  more  accurate 
statement  of  the  law.  Of  these  48-53,  55,  57-59,  62  and  63,  may 
be  disregarded  as  being  temporary  in  character  in  the  original 
charter,  or  needing  to  be  dropped  because  of  the  change  in  the 
throne  or  in  the  form  of  the  charter,  and  12,  14,  15,  and  6l,  are 
sufficiently  discussed  elsewhere.  Of  10  and  11  of  1215,  it  is  to 
be  said  that  while  they  undoubtedly  corrected  some  cases  of  in- 
justice, they  at  the  same  time  created  others,  and,  so  long  as  the 
Jew  was  regarded  in  law  as  the  king's  serf,  a  charter  whose 
object  was  not  new  legislation  but  a  statement  of  existing  law, 
was  going  beyond  its  limits  in  these  clauses.  Correction  of  the 
abuses  referred  to  was  later  made  by  statutes,  as  in  1236  in  c.  5 
of  the  statute  of  Merton  (M.  Par.,  III.  34>3;Ann.  Burton,  p.  251). 
Clause  25  was  clearly  unjust  as  has  already  been  said  at  suffi- 
cient length.  Clause  27  may  have  enacted  a  desirable  reform, 
but  it  clearly  made  a  change  in  the  law  as  it  stood  (Glanvill,  VII. 
16,  2;  Round,  Calendar,  p.  478;  Viollet,  £tabl.  de  St.  Louis,  II. 
150-152,  IV.  42-49).  Of  both  clauses  42  and  45  it  must  be  said 
that  they  took  away  from  the  king  clearly  recognized  preroga- 
tives, long  established  in  use ;  that  they  are,  therefore,  both  legis- 
lative in  character;  and  that  upon  the  principles  of  the  main 
body  of  the  charter  they  would  be  hard  to  justify.  On  the  de- 
cision of  Louis  IX.  in  the  Mise  of  Amiens,  in  January,  1264, 
against  the  principle  of  c.  45,  see  note  35  above;  a  correct  de- 
cision so  far  as  the  question  was  one  of  law  merely.  Nearly 
all  these  clauses  are  referred  to  as  dubitabilia  in  1216,  and  that 
is  given  as  the  reason  for  their  omission.  All  indications  point  to 

[260] 


MAGNA  CARTA 

the  fact  that  the  barons  who  reissued  the  charter,  when  they  said 
this,  were  making  an  honest  statement  of  their  reasons.  It  has 
been  generally  believed  that  the  purpose  of  the  omissions,  and 
of  some  of  the  changes,  was  to  remove  restrictions  which  the 
charter  had  placed  upon  the  power  of  the  crown  now  that  the 
barons  were  themselves  to  be  responsible  for  the  carrying  on  of 
government  (Stubbs,  II.  21;  McKechnie,  p.  165  ff),  but  some 
of  the  evidence  supposed  to  show  this  purpose  is  not  to  the  point. 
It  is,  for  instance,  an  incorrect  interpretation  of  c.  12  which 
regards  it  as  restricting  any  legal  taxing  powers  which  the 
crown  had  possessed,  or  its  omission  as  increasing  those  powers. 
While  it  is  no  doubt  true  that  the  omitted  clauses  would  have 
secured,  if  they  had  been  allowed  to  stand,  some  interests  of  the 
barons  as  against  the  crown,  no  one  of  them  enacted  any  essential 
limitation  upon  a  royal  absolutism.  There  can  be  no  doubt,  how- 
ever, but  that  the  reissue  of  1216  does  leave  the  crown  in  many 
particulars  a  freer  hand.  If  the  Charter  were  to  be  improved 
in  accuracy  and  legality,  any  other  result  was  impossible.  The 
whole  object  of  the  original  Charter  was  to  put  restrictions  upon 
the  king,  upon  his  illegal  action  and  his  usurpation  of  rights.  If 
in  some  cases  in  their  zeal  the  barons  went  beyond  their  rights 
and  interfered  with  prerogative  acts  of  the  king's  which  the  law 
allowed  him,  to  correct  these  errors,  to  make  the  charter  con- 
form as  nearly  as  they  could  to  the  law  as  it  stood,  would  neces- 
sarily have  for  result  to  free  the  king's  hands  in  these  respects. 
To  show  that  the  Charter  of  1216  allows  to  the  king  some  greater 
liberty  of  action  than  that  of  1215  is  not  to  show  that  to  do  this 
was  the  purpose  of  the  barons  in  making  the  changes.  A  minute 
analysis  of  the  four  documents  will  show,  I  think,  conclusively 
that  from  the  Articles  of  the  Barons  to  the  reissue  of  1217  there 
is  evident  on  the  part  of  the  barons  an  honest  intention  to  state 
their  rights  only  within  the  limits  of  the  law,  to  deprive  the  king 
of  nothing  to  which  he  could  justly  lay  claim,  or  having  done  so 
to  withdraw  the  demand,  and  to  make  their  statements  of  the  law 
more  clear  and  full,  more  accurate  and  j  ust,  wherever  they  learned 
of  the  possibility  of  improvement.  Some  clauses  of  the  reissue 

[261] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

of  1217  were,  it  is  true,  new  legislation,  like  39  and  43,  but  these 
clauses  interfere  with  no  rights  of  the  crown  and  are  in  them- 
selves easily  defended. 

NOTE  D.    MAGNA  CARTA,  CLAUSE  39 
(Page  242.) 

THE  fundamental  difficulty  in  the  interpretation  of  c.  39  is  that 
created  by  the  last  phrase,  nisi  per  legale  judicium  parium  suorum 
vel  per  legem  terrae.  It  would  be  more  accurate  perhaps  to  say 
difficulties,  since  problems  of  more  than  one  kind  are  created  by 
these  words,  but  the  most  important  question  to  be  settled  is 
the  translation  to  be  given  to  the  word  vel.  Shall  we  say 
according  to  classical  usage  "or,"  or  according  to  the  usage  fre- 
quent in  medieval  writers  "and"?  No  one  will,  I  think,  be  dis- 
posed to  take  seriously  Mr.  Vernon  Harcourt's  assertion,  Steward, 
p.  224,  that  the  conjunctive  use  of  vel  is  always  a  blunder. 
This  additional  meaning  of  the  word  is  too  well  established  to 
admit  of  question.  See  for  example  index  *.  v.  vel,  of  Wb'lfflin's 
ed.  of  Benedict's  Regula  (Teubner},  p.  84;  Liebermann,  Einlei- 
tung  in  den  Dialogus  de  Scaccario,  p.  84,  n.  1 ;  and  Du  Cange  s.  v. 
A  conjunctive  interpretation  of  vel  in  this  phrase  receives  some 
support  from  the  use  of  the  word  in  the  first  part  of  the  clause. 
The  change  there  from  vel  to  aut  can  hardly  have  been 
otherwise  than  conscious  and  intended ;  it  implies  almost  neces- 
sarily that  capiatur  and  imprisonetur  were  looked  upon  by  the 
writer  as  together  constituting  one  act,  coordinate  with  those  that 
follow,  imprisonetur  being  the  really  important  idea.  There 
should  probably  be  no  comma  after  capiatur  and  we  should  trans- 
late: "no  one  shall  be  arrested  and  imprisoned,  or."  It  must  be 
admitted,  however,  that  this  interpretation  cannot  be  applied  to 
c.  29  of  the  Articles  of  the  Barons  and  that  fact  should  be  allowed 
such  weight  as  it  may  be  considered  to  deserve.  In  my  opinion 
it  is  to  be  taken  as  one  of  the  cases  of  more  exact  statement  in 
the  later  document.  The  Charter  as  a  whole  is,  moreover,  so 

[262] 


MAGNA  CARTA 

inconsistent  in  its  vocabulary  that  it  is  not  possible  to  quote  with 
any  confidence  one  portion  of  it  to  determine  the  meaning  of 
words  in  another.  More  conclusive  is  the  evidence  to  be  derived 
from  an  examination  of  the  other  words  of  the  phrase  as  used 
in  contemporary  material.  Such  an  examination  shows  for  one 
thing  that  the  words  legem  terras  may  be  taken  to  mean  the 
compurgation  procedure,  as  that  was  used  in  the  older  courts. 
See,  for  one  instance,  Bracton's  N.  B.,  pi.  325.  But  there  is  so 
far  as  I  have  been  able  to  ascertain  no  case  of  per  legem  terras  in 
this  sense.  The  material  to  be  searched  for  such  a  case  is,  how- 
ever, so  vast  that  I  hesitate  to  assert  that  there  is  no  one  to  be 
found.  On  the  other  hand,  it  is  equally  certain  that  lex  terrce 
frequently  means  the  law  of  the  land  in  a  broader  sense,  the 
whole  body  of  law  and  custom  by  which  rights  as  well  as  pro- 
cedure were  regulated.  Instances  of  the  use  of  the  words  in  this 
sense  are  to  be  found  in  intimate  connexion  with  the  general 
meaning  of  c.  3d  in  cc.  56  and  57  of  the  Charter,  where,  however, 
they  are  preceded  by  the  preposition  secundum.  Of  judicium 
more  than  one  meaning  can  be  proved,  but  of  judicium  parium 
taken  together  only  one,  so  far  as  I  know, — the  judgment  made 
by  the  assembly  in  a  court  of  peers,  though  the  word  might  as 
accurately  be  applied  in  many  cases  to  a  manorial  as  to  a  baronial 
court.  If  now  with  these  meanings  of  the  words  which  it  con- 
nects, we  give  to  vel  a  disjunctive  force,  the  clause  is  reduced 
to  a  practical  absurdity.  If  legem  terrce  is  taken  to  mean  the 
compurgation  procedure,  we  have  an  alternative  proposed  between 
this  and  judicium  parium  which  never  could  have  existed.  The 
king  would  be  required  to  choose  one  or  the  other,  but  such  a 
choice  was  impossible.  Compurgation  never  took  place  except 
upon  a  judicium  parium,  or  what  would  be  its  exact  equivalent 
in  a  popular  court,  a  judicium  curice,  and  it  was,  in  theory  at 
least,  always  followed  by  another  determining  the  final  judgment 
of  the  court.  It  is  not  possible  to  suppose  that  a  writer  as  familiar 
with  the  judicial  procedure  of  his  time  as  the  one  who  drafted 
the  Charter  certainly  was  would  have  separated  two  essential 
parts  of  a  continuous  process  by  a  disjunctive  particle,  offering 

[263] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

a  choice  between  them.  If  on  the  other  hand,  we  take  the  broader 
meaning  of  legem  terrce  and  interpret  the  phrase  "by  judgment 
of  his  peers  or  by  the  law  of  the  land/'  we  have  a  result  which 
is  only  less  impossible,  and  equally  absurd,  since  the  second  which 
is  offered  as  an  alternative  to  the  first  necessarily  includes  it,  the 
judicium  parium  being  a  very  essential  part  of  the  body  of  law 
by  which  all  rights  were  protected  and  not  to  be  separated  from 
it  as  a  different  thing.  It  would  not  have  been  possible  for  any 
one  to  invoke  the  protection  of  the  law,  at  least  under  the  tradi- 
tional system,  without  invoking  at  the  same  time  a  judicium 
parium.  The  only  admissible  interpretation  of  the  clause  which 
I  have  seen  on  the  assumption  that  vel  is  disjunctive,  is  that 
suggested  by  Stephen,  Criminal  Law,  I.  162-163,  that  it  means 
by  the  judgment  of  his  peers,  if  he  is  a  vassal  of  the  king's,  and 
by  the  law,  that  is,  as  the  law  of  the  land  provides,  if  he  is  not. 
There  is,  I  think,  no  objection  to  this  explanation  except  that  the 
language  of  the  clause  hardly  warrants  us  in  supposing  that  so 
fine  a  distinction  was  in  the  minds  of  the  barons.  If  they  had 
intended  to  say  this,  they  would  have  said  it  much  more  plainly. 
Certainly  this  distinction  was  not  in  mind  in  the  corresponding 
phrase  in  the  letters  patent  of  May  10,  quoted  below,  where  we 
should  expect  it  if  anywhere,  because  the  rear  vassal  had  just 
been  expressly  named.  I  am  inclined  to  think  that  in  this  clause 
the  barons  had  in  mind  only  the  members  of  their  own  class,  who 
would  have  suffered  most  severely  from  the  arbitrary  extra- 
judicial  action  of  the  king,  nor  do  I  think  that  any  intention  of 
general  application  can  be  proved  by  the  words  nullus  liber  homo. 
It  seems  to  me  at  least  clear  that  the  words  liber  homo  are  not 
used  in  any  consistent  sense  in  the  Charter.  In  c.  20  the  whole 
baronial  class  proper  is  in  intent  excluded.  In  c.  34  the  baronial 
class  alone  is  meant  by  the  term.  It  might  seem  to  be  pressing 
the  matter  a  little  too  far  to  say  that  the  classes  referred  to  in 
these  two  clauses  do  not  overlap  at  all.  Clause  20  includes,  as 
Bracton  states,  f.  116  b,  the  simple  knight  who  possessed  say 
only  a  single  fee,  or  a  fraction  of  a  fee,  who  may  often  have  been 
reckoned  in  1215  as  a  minor  baron,  but  the  cases  would  be  very 

[264] 


MAGNA  CARTA 

few  in  which  the  simple  knight  would  possess  a  feudal  court  try- 
ing cases  which  would  be  likely  to  be  evoked  from  his  court  by 
the  writ  Praecipe.  Such  cases  would  be  so  few  that  I  think  it  is 
not  going  too  far  to  say  that  the  classes  which  the  barons  had 
in  mind  in  the  two  clauses  were  mutually  exclusive.  Liber  homo 
in  c.  34  certainly  includes  only  those  possessing  a  baronial  court 
trying  cases  of  greater  importance  than  those  usually  coming 
before  the  ordinary  manorial  court  of  mixed  jurisdiction  over 
the  class  of  serfs  and  common  freemen.  The  words  are,  however, 
generic  and  may  have  been  used  in  both  34  and  39  to  be  sure  to 
include  everybody  who  should  be  included,  but  they  might  also 
have  been  very  naturally  used  of  tenants-in-chief,  who  were 
regarded  throughout  the  feudal  world  as  preeminently  free  men, 
and  without  any  thought  that  others  might  be  included  in  the 
term.  They  would  form  also  almost  exclusively  the  class  exposed 
to  the  abuses  forbidden.  The  words,  liber  homo,  however,  in  their 
general  use  do  certainly  include  the  rear  vassal,  and  so  far  as 
language  goes  it  does  not  seem  to  me  impossible  to  say,  as  Mr. 
Beardsley  has  done  (Law  Quart,  Rev.,  V.  125),  that  "it  may 
reasonably  be  suspected  that  c.  39  also  was  directed  merely  to 
maintain  the  lord's  court  against  Crown  encroachments,"  though 
I  think  the  word  "merely"  should  be  omitted.  But  it  does  seem 
to  me  unlikely  that  the  barons  intended  to  include  under  the 
words  any  freemen  outside  the  vassal  class.  I  express  this  view 
in  qualified  form  and  hold  it  subject  to  correction  since  the  other 
is  universally  held,  but  as  the  words  judicium  parium  were 
commonly  used,  and  as  they  would  naturally  be  understood  by 
those  who  wrote  and  those  who  read  the  Charter  in  1215,  I  feel 
quite  sure  they  can  have  meant  a  feudal  court  only,  excluding 
from  this  term  of  course  the  manorial  court  proper.  If  the  popu- 
lar courts,  and  the  non-vassal  freemen  in  those  courts,  had  been 
in  mind  as  one  of  the  things  to  be  covered  by  the  clause,  other 
words  or  more  words  would  have  been  used.  And  this  appears 
to  me  to  be  true  notwithstanding  the  fact  that  judicium  parium 
can  be  explained  in  one  sense  so  as  to  include  the  action  of  the 
popular  court  and  very  likely  instances  of  such  a  use  can  be  cited. 

[265] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

If  on  the  other  hand,  we  give  to  vel  a  conjunctive  meaning 
and  suppose  it  to  be  equivalent  to  et,  there  can  be  found  an  abun- 
dance of  evidence  to  support  what  would  seem  to  be  the  simple 
and  natural  meaning  of  the  phrase:  except  by  the  judgment  of 
their  peers  and  by  the  whole  body  of  law  and  custom  which  such 
judgments  are  intended  to  interpret  and  apply.  There  can  be  no 
possibility  of  doubt  that  this  is  the  meaning  of  the  closely  equiva- 
lent phrase,  which  has  been  often  quoted  in  this  connection,  from 
the  constitution  of  the  Emperor  Conrad  II.  of  1037,  Mon.  Ger. 
Hist.  Legum.,  Sec.  IV.,  T.  I.  90.  Nullus  miles  ....  sine  certa 
et  convicta  culpa  suum  beneficium  perdat,  nisi  secundum  consti- 
tutionem  antecessorum  nostrorum  et  judicium  parium  suorum. 
The  similarity  between  the  two  phrases  is  to  be  explained  not  on 
any  ground  of  historical  connexion  or  imitation  (Stubbs,  I.  578), 
but  because  both  grow  out  of  exactly  the  same  conditions  of  feudal 
law  and  procedure  in  an  effort  to  provide  against  the  same  pos- 
sibility of  danger.  The  order  of  words  is  transposed  in  Conrad's 
constitution,  but  that  is  of  no  importance.  It  is  also  transposed 
in  the  letters  patent  which  John  had  issued  on  the  tenth  of  May 
in  an  attempt  to  win  the  barons  over,  or  to  break  up  their  party 
(Rymer,  I.  128).  It  is  evident  that  in  issuing  the  letter  this 
demand  of  the  barons  was  specifically  in  mind  and  the  phrase 
reads:  Sciatis  nos  concessisse  baronibus  nostris  qui  contra  nos 
sunt,  quod  nee  eos  nee  homines  suos  capiemus  nee  dissaisiemus, 
nee  super  eos  per  vim  vel  per  arma  ibimus,  nisi  per  legem  regni 
nostri,  vel  per  judicium  parium  suorum  in  curia  nostra.  This 
letter  is  of  special  interest  because  it  shows  an  opinion  among 
the  king's  party  that  the  barons  regarded  this  as  one  of  their 
most  essential  demands.  If  they  could  obtain  this  they  might 
be  willing  to  go  home.  It  is  also  of  interest  because  while  the 
rear  vassal  is  clearly  included  in  the  enumeration  of  persons,  the 
exceeding  carelessness  of  the  phrase  per  judicium  parium  suorum 
in  curia  nostra,  requiring  an  impossibility  if  strictly  interpreted, 
shows  conclusively  that  procedure  was  not  the  thing  they  had  in 
mind,  and  that  there  was  no  dependence  of  the  legem  of  which 
they  were  thinking  upon  a  judicium,  that  is,  the  legem  in  this 

[266] 


MAGNA  CARTA 

instance  was  not  compurgation.  What  they  demanded  was  the 
right  and  justice  secured  by  the  general  body  of  the  law  oper- 
ating through  the  processes  most  familiar  to  them.  This  is 
clearly  the  meaning  of  the  words  attributed  by  Roger  of  Wend- 
over  to  William  de  Braose  (M.  Par.,  II.  524),  when  he  says  that 
he  is  ready  to  satisfy  the  king,  secundum  judicium  curiae  suae  et 
baronum  parium  meorum.  Had  the  word  secundum  been  used 
in  this  clause  of  the  Great  Charter  it  would  not  have  been  neces- 
sary to  give  so  much  study  to  the  phrase.  The  pope  certainly 
understood  the  language  in  that  way  as  he  makes  clear  both  in 
his  bull  absolving  John  from  his  oath  to  the  Charter  and  in  his 
letter  to  the  barons  of  the  same  day.  The  letter  reads: 
Praesertim  cum  in  causa  ipsa  vos  judices  et  executores  feceritis; 
eodem  Rege  parato,  in  curia  sua,  vobis,  per  pares  vestros, 
secundum  consuetudines  et  leges  regni,  justitiae  plenitudinem 
exhibere.  Rymer,  I.  136.  Secundum  and  per  seem  to  have  been 
to  some  extent  interchangeable  in  such  phrases,  at  least  the 
utlegatus  per  legem  terrae  of  Glanvill  VII.  17,  7,  becomes 
utlegatus  rite  et  secundum  legem  terrae  in  Bracton,  f.  128  b. 
There  can  be  no  doubt,  I  think,  that  c.  39  was  in  mind  in  draw- 
ing up  c.  56,  but  there  we  have  per  judicium  parium  suorum 
secundum  legem.  An  interesting  parallel  is  an  interpolation  by 
a  London  writer  about  1210  in  Leges  Henrici,  8,  1  (Liebermann, 
Gesetze,  I.  554,  d.).  Quia  nil  a  nullo  exigi  vel  capi  debet  nisi 
de  jure  et  ratione,  per  legem  terre  et  justitiam  et  per  judicium 
curie.  In  case  of  the  courtesy  right  of  the  husband  to  hold  dur- 
ing life  the  maritaglum  of  his  deceased  wife  he  is  always  said 
to  hold  per  legem  Anglice.  See  Bracton,  ff.  205,  215.  The  serf 
is  said  to  be  in  a  free  status  until  the  lord  claims  him  per  legem 
terrce.  Bracton,  f.  7.  In  Bracton,  N.  B.,  c.  1268,  the  court  tells 
Peter  that  if  he  thinks  he  has  any  right  in  the  land  in  question 
perquirat  inde  sibi  per  legem  terre  versus  Gilibertum.  It  would 
be  possible  to  multiply  indefinitely  evidence  of  this  kind,  if 
there  were  any  need  of  doing  so.  I  have  no  doubt  in  my  own 
mind  that  what  the  barons  wished  to  protect  by  this  clause 
against  the  arbitrary  action  of  the  king  was  their  right  to  the 

[267] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

traditional  curia  regis  trial  by  their  peers  according  to  the  law 
of  the  land  and  enforcing  their  rights  as  defined  by  that  law. 
If  any  one  thinks,  however,  that  per  legem  terras  must  refer 
to  procedure,  there  can  be  no  objection,  except  its  general  im- 
probability, to  the  translation,  "by  judgment  of  their  peers  and 
by  compurgation."  In  that  case  it  is  procedure  of  which  the 
barons  were  chiefly  thinking  and  then  there  is  considerable  likeli- 
hood that  what  they  were  objecting  to  was  the  new  royal  justice 
as  established  by  Henry  II.,  including  the  jury,  the  itinerant 
justice  court  and  the  permanent  central  court  of  Common  Pleas. 
See  McKechnie,  p.  449,  and  the  references  there.  I  think  the 
King's  Bench  can  hardly  have  been  included  in  1215.  If  the 
intention  of  the  clause  was  really  to  prevent  the  extension  of 
this  new  royal  justice  to  cases  coming  naturally  before  the  old 
curia  regis,  the  only  way  to  do  it  would  be  to  emphasize  the 
judicium  parium  and  pledge  the  king  not  to  depart  from  it.  It 
is  not  an  answer  to  this  suggestion  to  say,  as  has  been  said,  to 
disprove  the  traditional  interpretation  of  judicium  parium  as 
the  jury  trial,  that  in  criminal  cases  trial  by  jury  had  not  yet 
been  instituted  (Pike,  House  of  Lords,  169).  This  is  quite  true 
of  the  petty  jury  and  it  is  a  sufficient  answer  to  the  traditional 
view,  but  if  proposed  against  the  interpretation  of  c.  39  just 
suggested,  it  would  overlook  the  fact  that  in  1215  the  action  of 
what  later  becomes  the  grand  jury  was  an  integral  part  of  the 
trial  of  criminal  cases  in  the  new  royal  justice  as  has  already 
been  indicated.  It  does  not  seem  to  me  correct  to  say  as  Bigelow 
does  (Procedure,  p.  307),  that  the  Assize  of  Clarendon  substi- 
tuted the  ordeal  for  compurgation  in  the  old  procedure.  What 
it  did  was  to  substitute  the  action  of  the  accusing  jury  for  all 
that  part  of  the  procedure  which  went  before  the  ordeal,  leaving 
the  case  against  the  accused  as  it  stood  in  the  popular  court 
when  all  had  gone  against  him  down  to  that  point.  See  chapter 
III.,  pp.  116-120.  It  is  indeed  not  until  long  after  1215  that 
the  action  of  the  accusing  jury  ceases  to  be  a  part  of  the  trial 
and  comes  to  be  merely  a  method  of  deciding  whether  there  shall 
be  a  trial  or  not.  In  saying  that  no  jury  ever  did  or  could  give 

[268] 


MAGNA  CARTA 

a  judgment,  Mr.  Pike  (Ibid.,  p.  169;  cf.  P.  and  M.,  I.  173,  n. 
3),  seems  to  me  also  to  be  thinking  of  the  jury  in  its  modern 
use  and  to  be  applying  the  idea  to  the  accusing  jury  in  a 
medieval  case.  It  was  by  a  judgment  of  the  court  that  the  right 
of  making  the  oath,  that  is,  compurgation  was  assigned  in  a 
given  case,  and  though  the  action  of  the  accusing  jury  stood  for 
the  result  of  a  compurgation  rather  than  for  the  judgment  as- 
signing the  oath,  it  took  the  place  of  the  whole  process,  and 
could  not  have  seemed  very  different  to  the  actors  from  a  judi- 
cium  curias,  for  that  always  implied  an  opinion  of  guilt  or  inno- 
cence. In  this  respect  the  action  of  the  accusing  jury  in  a 
criminal  case  is  distinctly  different  from  that  of  the  assize  jury 
in  a  civil  case.  It  should  be  remembered  that  in  a  twelfth  cen- 
tury court  judgment  was  never  pronounced  by  those  who  made 
it.  It  was  pronounced  by  the  moderator  of  the  court  who  had 
no  voice  in  making  it,  and  was  made  by  the  assembly  which  had 
no  power  to  pronounce  it,  except  as  that  power  might  be  dele- 
gated to  one  or  more  of  their  number  by  the  moderator.  I  think 
it  likely,  however,  that,  if  c.  39  refers  chiefly  to  procedure  and 
was  due  to  a  fear  of  what  the  royal  justice  might  lead  to,  it  was 
directed  less  against  the  jury  than  against  the  growth  of  courts 
tending  to  be  formed  exclusively  of  professional  justices  and 
excluding  any  real  judicium  parium.  It  is  hardly  likely  that 
such  a  tendency  would  be  noticed  when  the  itinerant  justice 
court  and  the  central  court  corresponding  to  it  were  first  formed 
under  Henry  II.  But  from  their  beginning  these  courts  would 
probably  assume  the  same  jurisdiction  as  the  great  curia  regis, 
that  is,  the  only  line  drawn  between  its  jurisdiction  and  theirs 
would  be  that  drawn  between  the  old  great  curia  and  the  small, 
viz.  the  importance  of  the  case  or  of  the  parties,  or  the  mere 
convenience  of  the  moment.  This  would  seem  at  first  a  perfectly 
normal  arrangement,  and  it  would  only  be  as  the  barons  became 
conscious  of  the  attack  all  along  the  line  which  the  judicial 
reforms  of  Henry  II.  were  making  on  their  private  jurisdic- 
tions and  personal  feudal  rights  that  they  would  begin  to  see 
that  the  jurisdiction  of  the  great  curia  regis  was  being  under- 

[269] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

mined,  its  cases  purloined  from  it,  by  the  growth  of  a  court  in 
which  there  was  a  judicium  parium  only  in  theory  and  that,  too, 
theory  of  a  very  bald  sort  as  they  would  regard  it.  That  in 
theory,  and  in  very  plausible  theory  from  the  king's  point  of 
view,  the  justice  was  the  baron's  peer  cannot  be  denied.  As  has 
already  been  said,  the  peers  of  the  curia  regis,  both  as  great 
and  as  small  curia,  were  the  king's  immediate  vassals  who  might 
be  present,  and  such  others,  household  officers  or  persons  of  any 
kind,  as  the  king  might  summon  for  the  occasion.  I  do  not 
know  of  any  case  where  the  presence  in  the  old  curia  regis  of 
this  specially  summoned,  which  might  at  any  time  be  a  non- 
vassal  element,  was  ever  objected  to  either  in  England  or  in 
France  before  the  thirteenth  century  on  the  ground  that  per- 
sons composing  it  were  not  peers  of  the  vassal  according  to  a 
strict  definition.  In  France  in  1224  we  have  this  point  raised 
by  the  baronial  element  in  the  curia  regis  against  the  official 
element  in  the  well-known  case  of  John  de  Nesle  against  the 
Countess  of  Flanders,  and  decided  by  the  court  against  the 
barons  on  the  ground  of  custom  and  precedent.  Langlois,  Textes 
Relatifs  a  I'Histoire  du  Parlement,  p.  35,  No.  XXI. ;  Boutaric, 
Actes  du  Parlement  de  Paris,  I.  ccciii.  c.  2;  Williston  Walker, 
Growth  of  the  Royal  Power  in  France,  p.  82;  Vernon  Harcourt, 
Steward,  p.  271 ;  Petit-Dutaillis,  Louis  VIII.,  p.  34p.  But  by 
this  date  in  France  the  question  of  an  exclusive  peerage  had 
already  come  forward  in  other  ways,  as  it  had  in  England. 
Apparently  some,  more  or  less  conscious,  effort  was  made  to 
preserve  the  idea  of  a  judicium  parium  in  the  new  royal  courts. 
At  least  this  is  one  obvious  interpretation  of  the  phrase  used 
in  slightly  varying  forms  as  a  part  of  the  formula  in  the  numer- 
ous fines  of  the  later  years  of  the  twelfth  century,  for  example, 
in  a  fine  of  1189  made  at  York,  we  read,  after  the  names  of  the 
justices:  tune  justiciariis  domini  regis,  et  coram  aliis  baronibus 
et  fidelibus  domini  regis,  qui  tune  aderant.  Guisbrough  Cart., 
I.  167;  Surtees  Soc.,  Vol.  86.  I  have  chosen  purposely  one  of 
the  fuller  forms,  but  the  same  meaning  is,  I  think,  implied  in  all. 
Such  a  form  of  words  would  probably  seem  to  be  a  satisfactory 

[270] 


MAGNA  CARTA 

statement  of  the  facts  in  the  early  years  of  this  royal  justice. 
As  it  came  to  be  perceived,  however,  that  it  was  a  mere  form 
of  words  to  which  there  was  no  corresponding  fact  in  the  actual 
composition  of  the  court,  there  would  be  very  likely  to  occur 
cases  in  which  protest  would  arise.  This  may  well  have  been 
the  real  point  of  the  plea  of  the  abbot  of  Leicester  in  1200, 
cited  in  Maitland,  Select  Pleas,  p.  xiv.,  from  the  Plac.  Abbr., 
32,  for,  if  we  may  suppose  that  they  were  making  technical 
distinctions,  an  appeal  at  that  date  of  a  case  coram  rege  from 
the  Bench  would  be  an  appeal  from  a  court  in  which  the  pro- 
fessional judge  would  certainly  be  the  predominating  element 
to  one  in  which  the  old  method  of  trial  by  peers  could  still  be 
had.  If  we  could  suppose  this  explanation  correct,  and  of  course 
that  cannot  be  asserted,  we  should  have  here  the  two  ideas  of 
the  character  of  the  new  courts  meeting,  the  assertion  of  the 
party  in  the  case  that  it  was  not  a  court  of  peers  and  the  asser- 
tion of  the  court  in  deciding  against  him  that  it  must  be  so  con- 
sidered. That  this  last  assertion  can  no  longer  be  made  for 
the  itinerant  justice  court  at  least,  as  a  consequence  of  c.  21  of 
Magna  Carta,  is  indicated  by  the  mandate  cited  by  Madox,  I.  529, 
o,  and  cf.  P.  and  M.,  I.  411.  The  reference  there  to  Bracton, 
f.  116  b,  should  lead  us  to  notice  that  in  his  time  it  still  seems 
quite  natural  that  an  amercement  by  the  barons  of  the  Exche- 
quer should  be  equivalent  to,  or  better  should  really  be  an 
amercement  coram  consilio.  The  idea  that  the  Exchequer  was 
•a  true  small  curia  regis  was  not  yet  lost  sight  of — though  the 
Common  Bench  had  so  plainly  become  professional.  The  Miror 
of  Justices,  I.  XIV.  (ed.  Whittaker,  Selden  Soc.,  p.  36),  shows 
the  natural  continuation  of  this  view  into  the  early  portion  of 
a  period  when  the  Exchequer  was  becoming  a  common  law  court. 
Bracton's  N.  B.,  c.  1213,  would  indicate  the  same  feeling  on  a 
coram  rege  case  in  1226-27.  That  in  times  not  long  after  1215, 
the  bearing  of  the  growth  of  a  class  of  professional  justices 
upon  trial  by  peers  was  thought  upon  and  troubled  the  minds 
of  the  barons  is  clear  from  the  taunt  of  Peter  des  Roches  in 
1233  (31.  Par.,  III.  252).  To  the  demand  of  the  revolted  earl 

[271] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

Marshal  and  his  friends  for  trial  by  their  peers,  Peter  replied: 
quod  non  sunt  pares  in  Anglia,  sicut  in  regno  Francorum;  unde 
licet  regi  Anglorum  per  j  ustitiarios,  quos  constituent,  quoslibet 
de  regno  reos  proscribere  et  mediante  judicio  condempnare. 
That  so  categorical  a  statement  was  as  truly  a  misrepresentation 
of  the  actual  facts  in  France  as  in  England  is  probable,  though 
this  is  not  the  place  to  enter  upon  that  subject.  See  Vernon 
Harcourt,  Steward,  pp.  269-273.  In  truth  this  conflict  of  ideas 
and  institutions,  which  was  to  be  fought  through  in  France  as 
in  England  and  upon  the  same  issues,  resulted  in  a  more  com- 
plete, though  really  barren,  victory  for  the  class  at  large  in 
England  than  in  France,  and  to  this  victory  clauses  21  and  39 
of  Magna  Carta  certainly  contributed,  whether  the  barons  had 
the  specific  point  in  mind  in  1215,  or  not. 

As  I  have  already  said,  it  seems  to  me  more  likely  that  this 
was  not  what  they  were  chiefly  thinking  of,  that  they  were  here 
less  concerned  with  the  contrast  in  procedure  between  the  old 
curia  regis  and  the  new  royal  justice  than  with  John's  tyrannical 
treatment  of  his  vassals  without  any  process  of  law  of  either 
kind.  It,  therefore,  also  seems  to  me  hardly  likely  that  the 
abuse  of  which  they  complained  in  the  clause  was  very  closely 
connected  with  those  summary  writs  of  execution  without  trial 
which  are  discussed  by  Bigelow,  Procedure,  pp.  151  ff.  These 
writs  were  closely  related  to  the  writs  of  right  which  were 
plainly  considered  as  a  legitimate  exercise  of  the  king's  pre- 
rogative, and  it  does  not  seem  likely  that  they  were  in  them- 
selves frequent  enough  to  give  rise  to  such  a  complaint.  It  is, 
indeed,  doubtful  if  they  could  have  been  considered,  where 
properly  used,  as  an  abuse  at  all.  The  king  undoubtedly  some- 
times rendered  justice  in  person  in  a  case,  as  being  the  fountain 
of  justice,  and  it  is  possible  that  he  did  so  occasionally  on  ex 
parte  evidence  but  probably  always  in  such  cases  the  decision 
concerned  seisin  only  and  would  be,  as  in  the  case  of  the  pos- 
sessory assizes,  preliminary  to  a  trial  of  the  actual  title.  See 
the  writ  of  Stephen  printed  by  Round,  Commune  of  London,  p. 
114,  and  Round's  note.  It  is  quite  possible  that  some  incidents 

[272] 


MAGNA  CARTA 

which  seem  to  us  prerogative  judgments  are  really  cases  where 
A,  the  defendant  baron,  who  has  been  ordered  by  a  Praecipe 
writ  to  do  justice  to  B  or  explain  in  a  king's  court  why  he  has 
not  done  so,  elects  to  satisfy  B's  demand  at  once  rather  than  to 
let  the  case  come  on  for  trial.  It  is  highly  probable  that  such 
cases  occurred.  The  whole  subject,  however,  of  the  king's  pre- 
rogative right  which  lies  back  of  all  this  class  of  writs  needs 
further  investigation  and  nothing  can  at  present  be  said  of  it 
with  confidence.  In  any  such  study  care  should  be  taken  to  dis- 
tinguish between  disseisins  which  were  confiscations,  and  those 
which  were  distraints  merely  and  not  intended  to  disturb  title 
without  a  subsequent  judicium.  It  should  be  noticed  that  in 
c.  52  of  the  Charter  the  barons  virtually  admit  that  disseisins 
of  the  kind  of  which  they  complain  in  c.  39  had  been  made  by 
John's  father  and  brother.  It  seems  to  be  clear,  however,  that 
the  barons  were  demanding  in  c.  39  that  some  action  of  the 
king's  should  cease  which  was  violent,  arbitrary,  and  tyrannical 
in  character,  and  in  the  main,  perhaps  wholly,  it  relates  to  cases 
where  something  like  punishment  for  crime  is  inflicted  and  not 
to  interference  affecting  civil  cases.  The  disseisin  of  land  re- 
ferred to,  if  we  may  judge  by  the  context,  is  confiscation,  not 
the  transfer  of  seisin  from  one  claimant  to  another.  Of  acts 
of  injustice  of  this  kind  by  the  king,  we  have  some  evidence  but 
not  enough  as  yet  to  solve  the  difficulties  of  the  case.  See 
McKechnie,  p.  438;  Bracton,  N.  B.,  pi.  76;  401;  769;  1330; 
1500;  1593;  Madox,  I.  26,  a,  and  Form.  AngL,  No.  521.  Cases 
from  the  chroniclers  should  be  added  indicating  the  popular 
belief  about  the  treatment  of  those  captured  with  Arthur  at 
Mirabeau,  of  the  family  of  William  de  Braose,  of  Ralph  Fitz 
Walter  and  Saher  de  Quincy.  Disseisin  of  land  "sine  summo- 
nicione  et  sine  judicio"  was  not  ended  by  c.  39-  Cf.  Bracton, 
N.  B.,  pi.  1106. 

By  far  the  best  discussion  of  this  clause  to  be  had  is  that  by 
McKechnie.  Reference  should  also  be  made  to  Pike,  House  of 
Lords,  chapter  X.,  and  to  Vernon  Harcourt's  Steward,  chapters 
VII.  and  VIII.  This  last  is  a  very  helpful  study,  but  it  is  not 

[273] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

always  based  on  a  full  understanding  of  the  feudal  law,  and  it 
sometimes  demands  that  the  baron  of  1215  should  have  used 
the  language,  possessed  the  ideas  and  foreseen  the  difficulties  of 
the  man  of  1907. 


[274] 


CHAPTER  VI 

THE  IMMEDIATE  RESULTS  OF  MAGNA  CARTA 

Clause  61  of  Magna  Carta  comes  nearer  to  putting 
into  words  the  principles  on  which  the  barons  acted, 
and  on  which  the  whole  Charter  rested,  than  any  other 
portion  of  the  document.  But  clause  61  is  found  only 
in  the  Charter  of  1215.  It  was  dropped  from  all 
reissues  after  the  death  of  John  and  was  never  after- 
wards restored  in  any  form.  Again,  it  has  been 
asserted  of  the  Charter  as  a  whole  by  an  acute  critic 
of  English  law  and  history1  that,  from  its  reactionary 
character  and  its  consecration  of  the  past,  it  proved 
"a  positive  stumbling  block  in  the  path  of  progress." 
He  declares  that  this  fact  began  to  be  perceived  in  the 
reign  of  Henry  III.;  that  it  was  then  seen  that  the 
Charter  was  not  enough;  and  that  the  barons  at  the 
Parliament  of  Oxford  in  1258  attempted  an  entire 
break  with  the  past.  If  the  origin  of  the  English 
Constitution  is  to  be  ascribed  to  the  introduction  into 
history  as  an  active  influence,  of  the  principles  which 
were  most  nearly  formulated  in  clause  61,  as  affirmed 
in  chapter  IV.,  both  these  objections  must  be  met. 

Far  too  much  has  been  made  of  the  dropping  of 

l  Professor  Edward  Jenks  in  an  article  entitled  "The  Myth  of  Magna 
Carta,"  in  The  Independent  Review  (1904),  IV.  260-273. 

[275] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

clauses  from  Magna  Carta.  Clauses  12  and  14  are 
usually  thought  of  in  that  connection,  perhaps  because 
the  historical  importance  of  clause  61  has  not  been 
fully  recognized,  but  the  case  is  the  same  for  all  three. 
A  little  reflection  ought  to  make  it  clear  that,  in  all 
that  was  really  important,  the  omission  of  these 
clauses  made  no  difference  either  in  the  law  as  it 
stood,  or  in  the  fact  that  the  king  was  bound  to  obey 
it  in  the  particulars  which  they  stated.2  With  the 
exception  of  some  minor  details,  which  concern 
chiefly  questions  of  method,  the  provisions  of  these 
clauses  were  all  drawn  from  the  feudal  law;  their 
existence  there  the  king  could  not  deny;  and  he  was 

2  The  board  of  twenty-five  barons  and  its  method  of  operation  of  course 
disappeared,  but  as  far  as  the  future  is  concerned  this  clumsy  piece  of 
machinery  was  not  the  essential  point  in  c.  61.  From  c.  14  there  may 
possibly  have  disappeared  some  new  points  of  detail,  if  they  were  new, 
but  I  think  rather  that  all  its  provisions  remained  in  force.  Clause  14 
is  interesting  in  some  minor  points,  but  it  was  from  the  beginning  an 
unnecessary  addition  to  the  Articles  of  the  Barons  and  quite  without 
importance.  If  it  had  been  retained  it  could  have  had  no  influence  what- 
ever on  the  development  of  Parliament.  In  c.  12  the  barons  seem  to 
have  been  led  by  a  difficulty  of  formulation  into  a  demand  in  regard  to 
scutage  which  custom  did  not  warrant,  and  this  was  given  up,  but  what 
they  were  trying  to  say  was  not  given  up,  nor  anything  else  in  the  clause. 
There  is  evidence  that  the  barons  carefully  guarded  their  rights  in  taxa- 
tion. See  Shirley,  I.  151  (the  action  of  the  county  court  which  Stubbs, 

II.  Sec.  209,  supposes  in  this  case  is  not  evident  in  the  text)  ;  M.  Par., 

III.  200;  V.  520.     On  the  last  reference,  see  McKechnie,  p.  301,  n.   1. 
The  idea  that  the  curia  regis,  described  in  c.   14,  might  be  made  the 
basis   of  constitutional   machinery   to   enforce   the   Charter   was    wholly 
beyond  the  political  horizon  of  the  barons  in  1215.     The  idea  "constitu- 
tional" was  an  outgrowth  of  the  fundamental  law,  binding  the  executive, 
then  beginning  its  slow  formation,  and  it  would  be  impossible  until  there 
should  be  a  considerable  experience  of  enforcing  that  law  against  the 
king;   there  was  needed  an  equally  slow  transformation  of  the  curia 

[276] 


IMMEDIATE  RESULTS  OF  MAGNA  CARTA 

just  as  much  bound  to  regard  them  before  June, 
1215,  and  after  November,  1216,  as  during  the  time 
when  they  formed  a  part  of  the  Charter.  The  Char- 
ter was  not  drawn  up  to  make  these  provisions  law. 
The  crisis  had  not  arisen  because  the  law  was  inade- 
quate. The  whole  movement  against  the  king  pro- 
ceeded on  quite  a  different  theory.  The  Charter 
seemed  necessary  because  the  king  persisted  in  vio- 
lating the  law  and  could  not  easily  be  restrained.  Its 
main  purpose  was  to  state  the  points  which  the  king 
had  violated,  not  in  order  to  make  them  legal,  or  bind- 
ing on  him,  but  to  secure  from  that  particular  king, 
because  of  what  he  had  done  in  the  past,  a  clear  and 
formal  acknowledgment  of  their  legal  and  binding 
character  and  then  to  get  his  agreement  to  machinery 
for  enforcing  them  in  the  future.3  If  John  had  had 

regis  into  the  later  Parliament,  changing  its  relation  to  the  other  ele- 
ments of  the  case,  community  and  king,  before  it  could  be  looked  upon 
as  the  natural  guardian  of  the  fundamental  law  against  royal  encroach- 
ment. It  would  be  the  natural  thought  of  the  barons  in  1215  that  some- 
thing new  was  required  to  meet  the  special  need.  This  is  what  they 
sought  to  get  in  c.  61,  and  c.  61  was  in  harmony  with  the  age  and  all 
that  was  possible  to  it.  That  it  should  be  omitted  in  the  reissue  of  1216 
was  inevitable.  However  true  it  might  be  that  the  principle  on  which 
it  rested  was  within  the  right  of  the  barons,  the  method  it  enacted  was 
revolutionary.  No  government  could  issue  such  a  clause  as  a  part  of 
the  law  which  it  proposed  to  recognize  without  confessing  its  habitual 
disregard  of  its  own  duties  and  of  the  rights  of  others.  Moreover,  if 
the  government  could  be  trusted  to  administer  affairs  in  harmony  with 
the  Charter,  c.  61  was  unnecessary.  The  commission  of  twenty-five  would 
have  no  work  to  do.  See  A.  H.  R.,  V.  649,  n.  1. 

3  Of  course  I  do  not  deny  that  there  was  some  new  legislation  in  the 
Charter,  as  I  have  already  indicated,  and  some  definition  of  doubtful 
points  as  the  barons  wished  them  defined,  but  these  were  incidental  and 
of  secondary  importance. 

[277] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

even  as  much  regard  for  the  law  as  had  William  I.  in 
his  time,  the  Charter  would  have  been  unnecessary, 
but  the  law  which  it  states  on  these  points  would  have 
been  in  force  very  much  as  the  barons  wished  it  to  be. 
This  then  is  to  be  said  with  regard  to  the  omission 
of  clause  61  from  the  Charter :  the  fact  did  away  with 
the  committee  of  twenty-five,  but  did  not  affect  the 
underlying  legal  principle  on  which  the  clause  rested. 
In  truth,  the  fate  of  this  principle,  and  of  all  that  was 
contained  in  the  Charter  of  1216,  and  of  the  whole 
body  of  law  by  which  the  king  was  bound,  depended 
not  upon  the  words  of  the  Charter  but  upon  the  char- 
acter of  the  following  age,  whether  the  government 
should  be  conducted  in  harmony  with  the  spirit  of  the 
Charter  and  its  principles  developed  in  natural  and 
orderly  growth ;  or  by  a  strong  king  in  a  spirit  hostile 
to  these  principles  until  they  should  become  forgotten 
and  obsolete;  or  as  a  third  possibility  by  a  weak  king 
in  a  spirit  neither  consistently  hostile  nor  friendly. 
In  this  latter  case  all  growth  would  seem,  more 
clearly  than  in  the  other  two,  to  be  determined  less 
by  historical  precedent  than  by  the  stronger  currents 
of  the  age  and  the  uncertain  action  of  revolution. 
As  a  matter  of  fact,  the  impression  made  by  the 
baronial  revolt  against  John  on  the  next  generation 
seems  to  have  been  as  decisive  an  influence  in  its  his- 
tory as  anything  in  the  language  of  the  Charter  itself, 
and  it  perpetuated  not  merely  the  Charter  but  all  the 
circumstances  and  purposes  of  the  insurrection. 

[278] 


IMMEDIATE  RESULTS  OF  MAGNA  CARTA 

When  we  turn  to  the  second  objection  and  consider 
the  influence  of  the  Charter  as  a  definite  body  of  law, 
and  its  relation  to  the  next  step  forward — the  Pro- 
visions of  Oxford  in  1258 — we  approach  a  more  diffi- 
cult question  and  one  whose  definite  answer  would 
require  an  extended  and  minute  examination  of  the 
reign  of  Henry  III.  It  is,  however,  a  most  impor- 
tant question.  It  must  be  considered  here  in  some 
detail,  and  on  its  answer  depends  our  understanding 
of  the  constitutional  development  through  this  critical 
age. 

A  fair  regard  for  the  law  really  describes  the  state 
of  things  for  many  years  after  the  accession  of  Henry 
III.  The  Charter  was  reissued  immediately  on  the 
death  of  John.  It  was  reissued  again  after  the  with- 
drawal of  Louis.  So  long  as  William  Marshal  lived, 
it  is  likely,  on  a  priori  grounds,  that  government 
would  be  carried  on  in  harmony  with  the  spirit  as  well 
as  the  letter  of  the  Charter,  and  we  know  of  nothing 
to  the  contrary.  The  first  difficulty  seems  to  have 
occurred  in  1223,  and  the  incident  in  a  way  strikes 
the  keynote  of  the  reign.  According  to  the  account 
of  Roger  of  Wendover,4  in  January,  in  what  seems  to 
have  been  an  adjourned  meeting  of  the  Christmas 
curia  regis,  the  archbishop  and  others  demanded  the 
confirmation  of  the  charters.  What  special  reason 
there  was  for  this  demand  at  the  time  is  not  shown, 
but  it  would  seem  from  other  things  that  the  financial 

4  Ed.  Coxe,  IV.  83;  M.  Par.,  III.  75. 

[279] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

difficulties  of  carrying  on  the  government  were 
beginning  to  be  felt  by  those  in  authority.5  They  now 
opposed  the  demand  of  the  archbishop,  and  William 
Brewer,  one  of  them,  speaking  probably  for  them  and 
in  the  name  of  the  king,  declared  that  the  grant  of 
liberties,  having  been  extorted  by  force,  ought  not  to 
be  observed.  This  excited  the  anger  of  the  archbishop 
and  he  said:  "William,  if  you  love  the  king,  you  will 
not  disturb  the  peace  of  the  kingdom."  Then  the 
king,  seeing  how  greatly  the  archbishop  was  moved, 
declared  that  the  oath  which  had  been  taken  "to  all 
those  liberties"  must  be  kept. 

Henry  III.  at  the  time  of  this  occurrence  was  in 
his  sixteenth  year.  He  was  probably  already  begin- 
ning to  take  an  interest  in  public  affairs  and  very 
possibly  had  begun  to  show  those  personal  charac- 
teristics which  made  the  financial  problems  of  his 
reign  unnecessarily  difficult.  However  this  may  be, 
this,  his  first  recorded  public  act  of  his  own,  is  strictly 
typical  of  his  whole  history.  The  confirmation  of  the 

5  See  the  letter  of  Honorius  III.  to  Pandulph  of  May  26,  1220,  Shirley, 
Royal  Letters,  I.  535:  non  sine  causa  miramur  quod  nunc  carissimus  in 
Christo  fllius  noster  Henricus,  rex  Anglorum  illustris,  cum,  ratione 
minoris  aetatis,  pauciora  quam  sui  praedecessores  expendat,  tanta  dicitur 
inopia  laborare,  quod  vix,  vel  nunquam  regali  sufficit  magnificentiae  pro- 
videre;  quare  gravis  ipsi  et  tali  regno  potest  imminere  jactura.  On 
May  18,  1219,  Pandulph  wrote  to  Ralph  Neville  to  pay  out  none  of  the 
money  coming  into  the  Exchequer,  cum,  sicut  bene  novisti,  dominus  rex 
multis  sit  debitis  oneratus,  Shirley,  Royal  Letters,  I.  120.  On  the  date 
of  this  letter  see  F.  M.  Powicke,  E.  H.  R.,  XXIII.  229.  Evidence  of 
the  king's  poverty  during  the  period  might  be  multiplied.  See  espe- 
cially the  formal  acknowledgment  of  a  rather  long  list  of  debts  due  to 
Pandulph,  February  18,  1221,  Cal  Pat.  Rolls,  283-284. 

[280] 


IMMEDIATE  RESULTS  OF  MAGNA  CARTA 

Charter  was  demanded;  those  responsible  for  the 
government  opposed  the  demand;  their  opposition 
was  met  by  a  threat  of  force;  in  fear  of  the  conse- 
quences the  king  yielded.  The  tragedy  of  his  father's 
reign  made  no  more  profound  impression  on  the  mind 
and  policy  of  Charles  II.  than  the  insurrection  and 
the  Charter  on  the  conduct  of  Henry  III.6  This  fact 
has  hardly  been  sufficiently  noted  among  the  in- 
fluences which  shaped  the  events  of  this  reign.  It  is 
not  strange  that  so  impressionable  a  nature  as 
Henry's  should  have  received,  in  the  especially  im- 
pressionable years  of  boyhood,  so  deep  a  bent  toward 
caution,  or  have  acquired  so  great  a  dread  of  the 
power  of  revolted  barons.  Certain  it  is  that  never  in 
his  reign  was  he  willing  to  carry  resistance  to  pres- 
sure beyond  a  certain  point,  or  to  dare  civil  war, 
unless  the  odds  in  his  favour  were  overwhelming.  It 
is  a  special  characteristic  of  the  reign  that,  when  the 
barons  were  united,  the  king  yielded  and  what  they 
demanded  was  done.  It  is  in  this  sense  that  the  inci- 
dent of  1223  gives  us  the  keynote  of  the  reign.  The 
only  element  which  we  cannot  specify  to  make  the 
case  complete  is  the  abuse  which  led  to  the  demand 
for  the  Charter.7  But  these  at  least  are  typical:  the 

<  Roger  of  Wendover  (ed.  Coxe),  IV.  269;  M.  Par.,  V.  137,  339,  569; 
and  the  references  in  note  10. 

7  It  would  seem  as  if  the  financial  necessities  of  the  government  were 
the  most  reasonable  explanation  of  the  efforts  which  were  made  during 
this  period  to  call  in,  earlier  than  strict  right  allowed,  the  castles,  domains 
and  escheats,  which  had  been  allowed  to  remain  in  the  hands  of  those 
to  whom  John  had  committed  them,  or  which  had  been  granted  anew 

[281] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

demand  was  made;  it  was  at  first  resisted;  the  pres- 
sure increased  and  developed  into  a  threat  of  force; 
and  the  king  yielded. 

If,  however,  there  was  a  confirmation  in  1223,  we 
now  know  nothing  of  it.  In  1225  the  Charter  was  not 
merely  confirmed;  it  was  resissued,  with  only  verbal 
changes  from  the  reissue  of  1217,  unless  the  change 
in  the  preamble  be  thought  more  important,  and  in 
this  form  it  became  the  Great  Charter  of  English 
law.  The  case  of  that  year  is  a  simple  one.  The 
great  council  was  asked  for  an  extraordinary  tax. 
The  barons  demanded  a  reissue  of  the  Charter,  as  a 

during  the  minority.  On  these  and  the  efforts  to  recover  them,  see  G.  J. 
Turner,  Trans.  Royal  Hist.  Soc.,  third  series,  I.  205-262.  It  was  to  aid 
in  this  process  apparently  that  the  pope  was  induced,  in  April  of  this 
year,  to  declare  the  king  of  age.  The  only  reason  which  he  gives  for 
his  act,  which  he  seems  to  recognize  as  premature,  is  lest  arrangements 
which  had  been  intended  for  the  king's  benefit  should  become  disad- 
vantages. See  Shirley,  I.  430,  and  cf.  M.  Par.,  VI.  69.  The  point  is  even 
more  clearly  stated  in  the  letter  of  May  26,  1220,  Shirley,  I.  535:  quidam 
eorum  [the  prelates]  non  quae  regis,  sed  quae  sua  sunt  illaudabili  aviditate 
captantes,  castra,  maneria  et  villas  et  alia  demania  ejus  improbe  usur- 
parunt  et  detinent  usurpata,  in  evidentem  ejusdem  regis  injuriam  et  jac- 
turam,  occasionem  frivolam  praetendendo,  quod  ea  servare  volunt  usque 
ad  plenam  regis  aetatem;  ut  sic  ipsis,  invito  domino,  rem  contrectantibus 
alienam,  et  in  bonis  regiis  debacchantibus,  interim  rex  mendicet. 
Towards  the  end  of  the  year  1223,  the  effort  led  to  the  most  formidable 
resistance  which  it  excited,  the  insurrection  of  the  earl  of  Chester  and 
his  supporters.  It  is  possible  that  the  financial  needs  of  the  govern- 
ment may  have  led  it  to  stretch  the  law  in  other  directions,  but  this  is 
mere  conjecture.  Magna  Carta  must  anyway  greatly  have  hampered 
the  regency  in  the  free  expansion  of  the  revenue  which  would  have  been 
possible,  if  the  methods  of  John  could  have  been  continued.  The  omis- 
sion of  c.  12  gave  no  freer  hand.  Clause  44  of  the  Charter  of  1217,  with 
the  interpretation  which  the  men  of  the  time  would  certainly  give  it  under 
the  influence  of  the  original  Charter  and  the  insurrection,  accomplished 
all  that  was  intended  by  c.  12.  Next  to  the  fundamental  principle  which 

[282] 


IMMEDIATE  RESULTS  OF  MAGNA  CARTA 

condition  of  their  consent,  because  the  king  had  been 
declared  of  age  and  certain  of  the  grants  made  in  his 
name  during  the  minority  had  been  already  annulled. 
The  Charter  does  not  seem  to  have  been  considered 
to  be  among  the  concessions  affected  by  the  minority, 
but  it  was  evidently  thought  to  be  an  important 
enough  matter  to  justify  this  precaution. 

It  has  been  supposed  that  in  1227,  when  Henry  in 
form  took  the  government  into  his  own  hands,  the 
Great  Charter  was  annulled,  and  that,  from  this  date 
to  its  next  formal  confirmation  in  1237,  it  was  not  in 
force.  The  idea  is,  however,  due  to  a  misapprehen- 
sion, as  has  been  clearly  shown  by  an  analysis  of  the 
evidence  of  1227,  and  as  is  perhaps  shown  also  by 
what  look  like  attempts  on  the  part  of  the  pope  to 
annul  the  Charter  between  1230  and  1237.8  In  form 

the  Charter  transferred  from  feudalism  to  the  modern  constitution,  its 
great  service  was  to  emphasize  so  profoundly  the  feudal  principle  of 
consent  to  extraordinary  taxation  that  for  three  quarters  of  a  century 
no  one  ventured  to  disregard  it.  But  both  Henry  III.  and  Edward  I., 
from  their  point  of  view,  may  be  excused  for  not  recognizing  the  beauties 
of  this  principle.  Looked  at  in  this  way  the  Charter  was  certainly 
"reactionary";  it  was  a  "stumbling  block"  in  the  way  of  the  formation 
of  the  kind  of  constitution  which  would  probably  have  come  into  exist- 
ence without  it. 

8  See  the  careful  study  of  what  took  place  in  1227  by  G.  J.  Turner, 
Select  Pleas  of  the  Forest,  Selden  Soc.,  XIII.  p.  xcix.  As  to  the  papal 
intention,  a  comparison  of  the  bull  of  February  20,  1238,  Rymer,  I.  234, 
with  that  of  January  10,  1233,  Shirley,  I.  551,  suggests  at  least  that  the 
Great  Charter  was  among  the  grants  intended  to  be  revoked.  See  Bliss, 
Calendar  of  Papal  Documents,  I.  148  (June  21,  1235),  and  3f.  Par.,  III. 
382,  368.  Perhaps  by  his  denial  recorded  on  p.  368  the  king  may  have 
meant  that  it  was  not  intended  to  include  Magna  Carta,  and  see  the 
third  letter  of  the  pope  to  the  legate  Otto,  dated  February  20,  1238, 
Bliss,  I.  16T,  and  also  pp.  224,  225  (1246). 

[283] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

at  least,  the  Charter  was  in  force  throughout  the 
entire  reign,  binding  alike  on  king,  courts  and  barons. 
With  1227  the  troubles  of  the  reign  began  and 
they  were  continuous  and  consistent  in  character, 
despite  some  variety  of  detail,  for  nearly  forty  years. 
They  were  due,  as  is  well  known,  to  the  character  of 
the  king.  But  Henry  was  not  intentionally  a  bad 
king.  In  moral  conduct,  except  when  his  financial 
difficulties  led  him  to  acts  of  meanness,  he  was  greatly 
superior  to  his  father.  He  intended  to  rule  well  and 
he  thought  of  himself  as  a  good  and  wise  sovereign. 
He  was  jealous  of  his  power.  He  knew  there  was 
danger  to  it  in  the  air,  though  he  did  not  understand 
the  form  in  which  the  danger  threatened,  and  he  was 
determined  to  keep  it  in  exercise  himself,  and  to  pre- 
serve it  whole.  Nor  was  his  chief  deficiency  weakness 
of  will,  as  was  perhaps  the  case  with  Stephen,  the 
king  with  whom  he  is  most  nearly  to  be  compared. 
A  more  serious  defect,  in  the  crisis  through  which  he 
was  called  to  carry  the  royal  power,  was  his  weak- 
ness of  intellect.  This  is  seen  not  so  much  in  that  he 
did  not  understand  his  own  time.  Many  rulers  fail 
there.  Rather  he  could  not  see  the  meaning  or  ten- 
dency of  single  events.  He  was  no  judge  of  men. 
He  did  not  know  what  to  do  in  difficulties.  His  gov- 
ernment was  continually  directed  by  others  without 
his  knowing  it,  and  he  never  had  a  consistent  policy 
for  any  length  of  time  except  under  the  influence  of 
a  stronger  personality.  Richard  of  Cornwall,  who 

[284] 


IMMEDIATE  RESULTS  OF  MAGNA  CARTA 

was  an  abler  man,  though  no  political  genius,  exer- 
cised at  intervals  a  strong  influence  over  the  conduct 
of  affairs,  and  it  might  have  been  fortunate  for  the 
English  kingship  if  he  could  have  acquired  permanent 
authority  behind  the  throne.9  He  was  not  the  type 
of  man,  however,  toward  whom  Henry  inclined;  it 
looks  at  times  as  if  he  felt  some  superiority  in  Richard 
and  was  jealous  of  him;  at  any  rate  during  almost 
the  whole  of  the  reign  the  control  of  king  and  govern- 
ment was  in  the  hands  of  inferior  and  more  selfish 
men.  It  may  be  that  Henry  vaguely  felt,  as  his 
father  had  clearly  done,  that  his  best  support  against 
his  own  baronage  would  be  found  in  foreigners  who 
should  owe  everything  to  him  and  who  would  nat- 
urally stand  in  opposition  to  the  native  aristocracy. 
Something  could  be  said  for  such  a  policy  if  consist- 
ently directed  by  a  strong  and  able  king,  but  in  the 
case  of  Henry  it  meant  the  exploitation  of  England 
by  successive  sets  of  utterly  selfish  foreigners  who 
lacked  wisdom  of  their  own  to  see  the  tendency  of 
events,  or  properly  to  identify  the  king's  cause  with 
theirs.  They  did  not  hesitate  to  endanger  England's 
interests  in  France  for  their  own  ends,  and  they  had 
no  defense  to  offer  against  a  like  abuse  of  the  king's 
weakness  by  the  pope. 

Such  a  reign,  guided  by  no  strong  will,  or  dominat- 
ing policy,  was  opportunity.  It  was  a  period  open  to 
be  shaped  by  whatever  influences  might  prove  strong- 

9 See  Ann.  Wykes,  p.  118;  M.  Par.,  III.  532;  IV.  11;  V.  73. 

[285] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

est  among  the  cross  currents  of  the  time,  and  whatever 
the  outcome  of  the  age  might  have  been,  it  would 
seem  to  us,  in  the  absence  of  leadership,  that  such  an 
outcome  was  the  natural  end  towards  which  all  things 
had  drifted. 

Strong  among  the  influences  in  such  a  period  would 
be  the  impression  made  by  events  which  lay  not  far 
in  the  background  of  the  past,  upon  the  minds  of 
those  who  were  now  to  determine  the  course  of  things. 
The  king  was  not  more  conscious  of  the  meaning  of 
the  last  years  of  his  father's  reign  than  were  the 
barons.10  In  1237  many  must  have  been  living  who 
had  gone  through  the  time  of  struggle  for  the  Charter. 
Of  the  twenty-five,  at  least  four  still  survived.  Of 
the  twenty-seven  named  in  the  preamble,  at  least  six.u 
Of  these  ten,  six  witnessed  the  confirmation  in  1237. 
It  would  be  very  strange  indeed  if  it  were  merely  the 

I"  Roger  of  Wendover  (ed.  Coxe),  IV.  295;  H.  Par.,  V.  360,  729,  732. 
See  note  6. 

11  These  were,  of  the  twenty-five,  John  de  Lacy,  Richard  de  Percy,  Roger 
de  Montbegon  and  Richard  de  Montfichet;  of  the  twenty-seven,  the 
bishops  of  Winchester,  Bath,  and  Worcester,  William  earl  Warenne, 
Hubert  de  Burgh  and  Matthew  FitzHerbert.  The  list  of  those  active  in 
public  affairs  at  both  dates  could  be  much  extended.  Of  the  witnesses 
of  the  confirmation  of  1237,  the  bishop  of  Durham  was  in  1215  bishop  of 
Chichester  and  took  an  active  part  against  the  French;  Bishop  Gross- 
eteste  was  then  about  forty  years  old;  the  earl  of  Ferrers  witnessed 
John's  charter  for  the  church  in  November,  1214;  Roger  de  la  Zouche 
was  one  of  those  named  as  swearing  to  support  the  five  and  twenty 
barons,  and  William  de  Cantelupe  as  one  of  John's  evil  counsellors; 
William  de  Lancaster  was  captured  by  John  in  Rochester  castle,  and 
William  de  Ros,  William  Mauduit  and  Oliver  de  Vaux  were  among  those 
jexcommunicated  by  name.  Several  of  these  were  still  living  in  1244. 

[286] 


IMMEDIATE  RESULTS  OF  MAGNA  CARTA 

Charter  which  men  remembered,  when  it  became 
necessary  to  demand  of  John's  son  the  reform  of 
abuses,  and  not  also  the  general  conditions  which 
produced  the  Charter  and  of  which  it  was  to  be  the 
correction.  When  similar  conditions  returned,  or 
what  seemed  to  the  actors  in  events  similar  condi- 
tions, it  is  natural  that  it  was  at  first  thought  that  a 
renewal  of  the  Charter  which  had  grown  out  of  those 
conditions  in  the  past  would  meet  the  case.  It  was 
only  after  some  years  that  it  was  seen  to  be  necessary 
to  go  farther  in  the  direction  which  the  Charter  had 
pointed  out. 

The  reign  then,  looked  at  from  this  point  of  view, 
leads  to  two  results,  or  series  of  results:  First,  con- 
firmations of  Magna  Carta,  and  second,  experiments 
at  further  control  of  the  sovereign  which  culminate 
in  the  Provisions  of  Oxford  and  the  Barons'  War. 

Confirmations  of  this  sort  begin  with  that  of  1237. 
It  must  be  understood  that  the  reason  and  purpose 
of  this  confirmation  was  quite  different  from  that  of 
the  reissue  of  1225.  That  was  demanded  and  granted 
on  general  principles  merely,  to  make  sure  that  the 
Charter  was  in  force  and  not  affected  by  the  disabili- 
ties of  a  minor  grantor.  This  was  for  a  specific  pur- 
pose, to  hold  in  check  a  king  who  had  proved  ready 
to  lend  himself  to  many  abuses  and  difficult  to  restrain. 
Already,  in  1233,  Richard  Marshal,  in  a  spirit  worthy 
of  his  inheritance,  had  thought  himself  driven  to  an 
appeal  to  arms,  premature  and  almost  useless,  though 

[287] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

it  gave  an  opportunity  for  the  application  of  other 
means  by  which  the  king  was  brought  to  an  appear- 
ance of  reformation.  It  was  a  reformation,  however, 
without  a  change  of  heart,  and  by  1237  the  abuses 
complained  of  were  as  bad  as  ever  and  the  character 
of  Henry  was  somewhat  better  understood.12  Advan- 
tage was  taken  of  the  king's  necessities  and  his 
request  for  a  new  tax,  to  demand  a  confirmation  of 
the  Charter  which  was  granted  in  a  special  charter 
and  accompanied  with  a  solemn  renewal  by  Arch- 
bishop Edmund  of  Stephen  Langton's  earlier  excom- 
munication of  all  who  should  offend  against  it.13 

The  demand  for  the  Charter,  however,  was  clearly, 
neither  in  1237,  nor  at  any  later  date  in  the  reign, 
primarily  a  demand  for  its  specific  provisions.  The 
abuses  which  were  most  bitterly  complained  of, 
Henry's  dependence  on  foreigners,  his  neglect  of  his 
natural  counsellors,  a  reckless  squandering  of  money, 
were  not  directly  aimed  at  in  any  of  the  clauses  of 
Magna  Carta.  There  is  no  evidence  in  this  reign  of 
any  violation  of  its  specific  provisions  which  passes 
from  the  character  of  an  individual  grievance  to  con- 

12  The  barons  seem  to  have  been  easily  persuaded,  however,  to  accept 
the  king's  promises,  as  compared  with  later  times,  and  Matthew  Paris, 
very  likely  writing  some  years  after  the  event,  appears  not  to  have  been 
unconscious  of  the  fact.    See  III.  383. 

13  The  charter  of  confirmation  is  given  in  Ann.  Tewk.,  p.  103;  Stubbs, 
S.  C.,  p.  365;  and  see  M.  Par.,  IV.  186.     On  the  excommunication,  cf. 
M.  Par.,  III.  382;  IV.  366;  V.  360;  Epp.  Grosseteste,  p.  231;  and  Ann. 
Wykes,  p.   83.     Grosseteste,  who  certainly  wrote  very  soon   after  the 
event,  and  who  witnessed  the  parvam  cartam  of  1237,  probably  states 
accurately  what  occurred. 

[288] 


stitute  a  danger  to  the  baronage  as  a  whole.1*  What 
was  wanted  was  something  different.  It  was  to  force 
the  king  to  acknowledge  that  he  was  bound  by  certain 
obligations  in  his  conduct  of  public  affairs.15 

It  ought,  I  think,  to  be  clear,  if  one  reflects  on  the 
nature  of  the  abuses,  laid  now  and  later  to  the  king's 
charge,  that  a  change  was  beginning  which  was  the 
opening  of  a  new  era.  All  through  the  list  the  differ- 
ence between  Henry's  case  and  John's  is  clear.  Of 
wardship,  marriage  and  the  treatment  of  widows,  it 
was  not  said  that  Henry  was  pushing  royal  rights 
beyond  bounds  to  extort  money  to  which  he  had  no 

1*  It  may  be  thought  that  the  denial  of  trial  by  their  peers  to  Richard 
Marshal  and  his  supporters  in  1233  approaches  the  point  of  danger. 
See  M.  Par.,  III.  247,  251;  Bracton's  N.  B.,  case  857.  Their  case  is,  how- 
ever, not  wholly  clear.  See  Vernon  Harcourt,  His  Grace  the  Steward, 
pp.  276-280,  with  whom,  however,  I  cannot  entirely  agree.  It  may  also 
be  thought  that  the  frequent  complaints  by  ecclesiastics  of  the  violation 
of  liberties  supposed  to  be  secured  the  church  indicate  dangerous  in- 
fringements of  the  Charter;  but  analysis  of  their  complaints  does  not 
show  this  to  be  the  case.  On  the  other  hand,  the  statement  in  P.  and  M., 
I.  179,  must  not  be  understood  to  mean  more  than  it  says.  It  is  there 
said:  "The  pages  of  the  chroniclers  are  full  of  complaints  that  the  terms 
of  the  charter  are  not  observed.  These  complaints,  when  they  become 
specific,  usually  refer  to  the  articles  which  gave  to  the  churches  the  right 
to  elect  their  prelates."  No  doubt  that  is  true.  But  it  would  not  be 
correct  to  infer  that  interest  in  the  Charter  as  a  practical  matter  was 
confined  to  ecclesiastics  or  references  to  it  to  the  chroniclers.  It  would  be 
quite  as  accurate  to  say  that  they  were  confined  to  lawyers  and  law 
courts,  for  the  evidences  of  their  interest  in  it  and  their  references  to 
it  are  quite  as  numerous.  An  interesting  instance  is  Bracton's  N.  B., 
pi.  1227,  where  the  Charter  is  referred  to  as  if  it  were  a  binding  statute 
which  might  determine  the  decision  if  it  had  anything  to  say  on  the 
question  before  the  court. 

is  This  is  true  also  of  practically  all  the  demands  for  the  confirmation 
of  Magna  Carta  after  this  date.  They  express  not  so  much  a  desire  that 
specific  provisions  of  the  Charter  should  be  reaffirmed,  though  there  is 

[289] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

claim;  it  was  said  that  he  was  using  these  rights  to 
provide  for  foreign  favorites  at  the  expense  of  his 
own  natural  subjects.  Of  taxation  it  was  not  said 
that  he  was  demanding  illegal  payments,  but  that 
sums  which  we  know  to  have  been  obtained  properly 
according  to  the  law,  disappeared  in  a  bottomless  gulf 
without  advantage  to  England.  In  matters  that  con- 
cern the  courts,  it  is  clear  that  the  requirements  of 
the  Charter  were  in  the  main  regarded,  and  com- 
plaints had  shifted  into  a  new  field  and  affected  the 
interests  of  the  royal  courts  only  indirectly.  Of  the 
miscellaneous  provisions  of  the  Charter  the  general 
fact  is  the  same.16  The  really  serious  complaints  do 
not  concern  them.  In  addition  one  thing  of  which 
the  son  is  constantly  accused  was  not  alleged  against 

evidence  in  plenty  that  many  of  these  were  treated  constantly  as  living 
law,  as  a  desire  to  get  the  king's  acknowledgment  in  general  that  he  was 
bound  by  the  law.  They  constitute  a  definite  line  along  which  the  funda- 
mental idea  of  the  Charter  was  carried  through  the  formative  age  of  the 
constitution  and  they  ceased  only  in  the  fifteenth  century,  when  it  had 
come  to  be  no  longer  a  matter  of  dispute  that  there  was  a  certain  body 
of  law  which  bound  the  king,  or  in  other  words  when  something  which 
may  be  fairly  called,  in  almost  a  modern  sense,  the  constitutional  mon- 
archy, had  been  established.  These  confirmations  of  the  Charter  were 
certainly  no  mere  form  and  they  were  not  necessary  because  "it  failed 
to  do  its  work"  (Jenks,  I.  c.,  p.  271).  They  were  necessary  because  the 
kings  were  constantly  devising  new  methods  of  escaping  their  obliga- 
tions, and  because  there  were  constantly  arising  new  interests  and  issues 
in  which  the  king  must  be  bound  to  serve  the  nation. 
w  See  the  Petition  of  the  Barons  of  1258,  Stubbs,  S.  C.,  p.  382,  for  com- 
plaints of  the  violation  of  a  number  of  the  provisions  of  the  Charter. 
It  is  evident,  however,  that  these  complaints  played  a  very  small  part 
in  producing  the  revolution.  The  real  abuses  which  moved  the  barons 
to  action  were  the  newer  ones,  and  it  was  at  these  that  the  Provisions 
of  Oxford  were  aimed. 

[290] 


IMMEDIATE  RESULTS  OF  MAGNA  CARTA 

the  father  at  all — the  neglect  of  his  natural  coun- 
sellors. It  is  a  complaint  typical  of  the  transition, 
and  involves  in  its  brief  statement  cause  and  conse- 
quence of  the  crisis.  It  says :  this  king  does  not  him- 
self govern,  the  government  is  in  the  hands  of  his 
council  which  exercises  his  prerogatives  for  him  and 
determines  all  that  is  done;  his  counsellors  are  now 
foreigners  who  have  no  regard  for  the  interests  of 
England  or  Englishmen  but  sacrifice  both  for  their 
own  selfish  ends;  foreigners  have  no  right  to  hold 
such  a  position,  the  right  belongs  by  nature  to  the 
baronage  of  England;  if  the  king's  natural  counsel- 
lors were  conducting  the  government,  the  abuses 
would  cease  and  the  interests  of  England  and  Eng- 
lishmen would  be  conserved.  There  was  no  room  for 
such  reasoning  in  the  case  of  John.  It  would  have 
been  absurd  to  assert  that  anyone  but  himself  was 
responsible  for  his  tyranny,  or  to  believe  that  a  change 
of  counsellors  would  bring  it  to  an  end.  But  this 
and  not  the  violation  of  particular  provisions  of  the 
law  was  the  great  difficulty  with  Henry. 

The  difference,  however,  was  much  deeper  than  a 
difference  in  personal  character  between  father  and 
son.  It  was  the  beginning  of  a  difference  between 
two  ages  of  history,  two  eras  of  civilization.  Trans- 
lated into  other  terms  this  complaint  meant:  in  the 
conduct  of  public  affairs  there  is  something  which 
ought  to  be  regarded  besides  the  king,  the  king's 
interests  and  the  king's  friends;  something  which  it 

[291] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

is  the  plain  duty  of  the  king  and  his  counsellors  to 
regard.  Over  against  the  king's  interests,  stand  the 
interests  of  the  land  and  of  those  who  have  a  stake 
in  its  prosperity,  as  something  which  may  be  different 
from  his,  something  which  the  king  may  be  tempted 
to  sacrifice  for  what  he  selfishly  desires.  It  is  not 
possible  to  say  "the  nation"  yet,  as  the  modern  man 
uses  the  term,  but  this  is  the  idea  and  the  fact  which 
was  realty  coming  to  birth.  Such  a  conception  was 
foreign  to  the  feudal  age,  but  feudalism,  in  its  consti- 
tutional aspects,  in  the  conception  of  the  state  logi- 
cally involved  in  it,  was  rapidly  coming  to  an  end. 
The  old  ways  of  doing  things,  judicial,  legislative, 
financial,  military,  were  all  giving  way  before  the 
new.  The  emphasis  which  daily  life  placed  on  its 
own  details  was  also  changing.  To  the  barons  of 
1215  the  writ  Prascipe  and  what  it  stood  for  seemed 
a  vital  matter.  Before  the  close  of  Henry's  reign, 
their  descendants  had  come  to  care  little  about  it,  and 
indeed  were  letting  slip  from  their  hands  with  seem- 
ing indifference  the  really  essential  elements  of  all 
private  jurisdiction  which  were  feudal  proper  in  char- 
acter, and  not  financial  or  manorial  merely.17  Men 

17  See  the  reference  to  Hengham  Magna,  c.  3,  from  P.  and  M.,  I.  588. 
Such  a  principle  regarding  court  service  as  that  laid  down  in  the  Pro- 
visions of  Westminster,  c.  1  (Stubbs,  S.  C.,  p.  401)  (Statute  of  Marl- 
borough,  c.  9),  runs  squarely  counter  to  the  practice  of  feudalism  at  its 
height  and  indicates  a  notable  decline  in  feudal  feeling.  The  attitude 
of  the  lawyers  of  the  middle  of  the  century  towards  court  service  in 
the  baronial  courts  is  well  enough  known.  See  Maitland,  Man.  Courts, 
xlvii.  ff.  It  should  be  noticed  that  pi.  531  of  Bracton's  N.  B.  does 

[292] 


IMMEDIATE  RESULTS  OF  MAGNA  CARTA 

were  of  course  unconscious  of  any  change.  They 
could  not  have  put  into  words  in  1237  the  ideas  which 
were  struggling  for  expression  in  the  things  they 
were  doing.  Nor  could  they  even  in  1264.  When 
they  tried  they  fell  back  upon  the  formulae  of  ancient 
speculation,  or  upon  notions  embodied  in  the  feudal- 
ism they  were  destroying.18  None  the  less  they  were 
really  giving  first  and  faint  expression  in  their  acts 
to  modern  conceptions  of  the  balanced  rights  and 
obligations  of  government  and  nation  which  seem  to 
us  the  commonplaces  of  politics. 

If  it  had  been  possible  for  them  to  formulate  their 
ideas  clearly,  they  would  not  have  been  satisfied  in 
the  crisis  of  1237  to  demand  merely  the  confirmation 
of  the  Charter  of  1225.  There  would  have  been 

not  support  the  principle  that  if  the  lord  "wishes  that  his  tenant  should 
do  suit  from  three  weeks  to  three  weeks,  he  must  expressly  bargain 
for  it."  The  tenant  in  the  case  had  been  enfeoffed  to  hold  by  the  service 
of  a  rent  payment  pro  omni  servitio  which  would  have  exempted  him 
from  ordinary  court  service  at  any  period  in  the  history  of  feudalism. 
The  same  is  true  of  the  case  of  B.  in  pi.  655.  L.'s  case  is  not  so  clear, 
but  the  jury  holds  that  it  is  covered  by  their  verdict  regarding  B.  A 
clear  case  to  the  point  would  be  one  where  an  ordinary  charter  of 
enfeoffment  with  no  exemptions  and  no  specification  of  court  service 
is  held  to  excuse  from  suit  of  court.  There  can  be  no  doubt,  however, 
but  that  the  principle  is  established  in  the  middle  portion  of  the  thir- 
teenth century.  Bearing  indirectly  upon  the  point,  as  illustrating  the 
general  frame  of  mind,  and  interesting  in  itself,  is  the  attitude  of  Hugh 
Bigod,  the  baron's  justiciar,  towards  baronial  and  municipal  liberties. 
See  Ann.  Dunst.,  p.  211-213;  Liber  de  Antiquis  Legibus  (Camden  Soc.), 
pp.  39-41;  Flores  Hist.,  II.  427.  Bearing  more  directly  upon  the  state- 
ment of  the  text  is  the  apparent  general  indifference  with  regard  to 
the  development  of  forms  of  writs  by  which  c.  34  of  Magna  Carta  was 
rendered  practically  void. 
18  See  note  at  the  end  of  the  chapter  (p.  311). 

[293] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

added  a  more  definite  statement  of  the  king's  obliga- 
tion to  be  bound  in  his  conduct  by  the  interests  of  the 
community.  Their  experience  did  not  yet  reach  to 
such  a  conclusion.  For  us,  however,  as  students  of 
history,  it  is  indispensable  to  understand  that  it  was 
in  its  specific  provisions  only  that  Magna  Carta  did 
not  apply.  In  the  great  principle  on  which  it  rested, 
its  application  to  the  crisis  was  perfect.  There  was 
in  it  a  recognized  body  of  right  which  the  king  was 
bound  to  respect.  This  law  had  for  its  object  to  pro- 
tect the  interests  of  the  ruled  against  the  selfishness 
and  tyranny  of  the  ruler.  If  the  ruler  could  not  other- 
wise be  brought  to  observe  it,  force  was  a  legal  re- 
course and  the  temporary  suspension  of  the  king  from 
ruling.  All  this  was  legitimately  involved  in  Magna 
Carta,  even  as  reissued  in  1225.  To  the  men  of  1237, 
Magna  Carta  would  stand  out  from  all  the  past  as 
the  legal  document  giving  most  clear  expression  to 
this  principle.  This  it  was,  vaguely  realized,  which 
was  sought  in  it.  It  bound  the  king  morally  and 
legally  and  with  all  the  sanctions  of  religion,  in  prin- 
ciple to  conduct  the  government  in  the  interest  of  his 
subjects.  If  ideas  had  widened  somewhat,  if  the 
community  of  the  governed  was  now  felt  to  be  larger 
than  in  1215,  the  principle  had  not  changed.  If  the 
king  would  do  this,  if  he  would  be  true  to  the  spirit 
as  well  as  to  the  letter  of  the  Charter,  the  troubles  of 
the  kingdom  would  cease.  Not  understanding  the 
nature  of  their  demand,  they  did  not  perceive  that 

[294] 


IMMEDIATE  RESULTS  OF  MAGNA  CARTA 

they  were  taking  the  first  step  towards  adding  to  the 
formal  requirements  of  the  Charter  a  new  and 
broader  one,  that  the  government  must  be  managed 
in  the  interests  of  the  governed.  I  think  they  were 
entirely  right  in  feeling  that  this  was  properly  implied 
in  Magna  Carta,  but  when  the  time  came  that  the 
character  of  this  requirement  could  be  understood,  a 
whole  age  had  passed  away,  and  a  new  civilization  had 
possession  of  the  world. 

The  confirmation  of  the  Charter  did  not  mend 
matters.  Some  part  of  what  the  barons  called  abuses 
was  inevitable.  The  economic  revolution  which  had 
troubled  John  did  not  close  with  his  death,  and  there 
would  have  been  complaint  of  the  expenses  of  gov- 
ernment under  the  most  economical  of  kings.19  But 

19  What  had  started  the  whole  revolutionary  movement  at  the  beginning 
of  the  thirteenth  century  was  indeed  the  breakdown  of  the  feudal  sys- 
tem as  a  source  of  government  supply.  In  addition  to  the  economic 
revolution,  the  increasing  amount  and  complexity  of  business  had  to  be 
reckoned  with.  This  showed  itself  on  one  side  in  the  rapid  development 
of  the  royal  courts,  and  on  another  in  the  increasing  expenses  of  the 
government,  which  it  was  no  longer  possible  to  meet  with  the  ordinary 
sources  of  revenue.  To  the  men  of  the  time  the  efforts  of  the  kings  to 
raise  money  were  signs  and  proofs  of  their  complete  depravity,  and 
there  is  no  doubt  but  that  the  difficulties  of  the  case  were  complicated 
through  more  than  half  the  century  by  bad  government;  but  the  best 
king  that  ever  reigned,  had  his  lines  fallen  in  England  in  the  thirteenth 
century,  would  have  been  forced  to  resort  to  much  the  same  expedients. 
The  French  monarchy  had  to  face  this  difficulty  later  and  less  suddenly 
than  the  English,  but  it  made  use  of  practically  the  same  means  to  meet 
it,  and  experienced  practically  the  same  opposition,  though  this  was  for 
special  reasons  less  united  and  less  intelligent.  The  expedients  to  which 
the  papacy  was  obliged  to  resort  during  the  reign  of  Henry  III.  in  order 
to  obtain  an  adequate  revenue  were  due  to  the  operation  of  the  same 
general  causes. 

[295] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

Henry  had  no  mind  to  any  sort  of  reform.  He  no 
more  understood  the  situation  than  did  the  barons, 
and  he  firmly  believed  that  he  was  quite  within  his 
rights  in  choosing  as  counsellors  whom  he  pleased,  as 
indeed  he  was  according  to  the  letter  of  the  law.20 
Within  a  few  years  the  barons  began  to  perceive  that 
Magna  Carta  was  insufficient.  It  did  not  enforce 
itself. 

In  saying  that  in  the  reign  of  Henry  III.  it  was 
"seen  that  the  Charter  was  not  enough,"  Professor 
Jenks  is  quite  right.21  But  it  does  not  follow  that  in 
consequence  the  barons  were  led  to  attempt  "an 
entire  break  with  the  past."  That  is  to  overlook  the 
fact  that  in  the  reign  of  Henry  III.  exactly  the  same 
problem  arose  as  in  the  reign  of  John.  It  was  not 
the  problem  of  getting  the  king  to  acknowledge  the 
existence  of  a  body  of  law  which  he  was  bound  to 
observe.  Both  kings  did  that,  Henry  repeatedly. 
It  was  the  problem  of  how  to  compel  the  king  to  keep 
the  law  when  he  persistently  refused  to  do  so.22  This 

2°The  peculiar  glory  of  the  English  Constitution  is  indicated  in  saying 
that  precisely  the  same  thing  is  true  of  King  George  V.  today,  but  that 
he  does  not  exercise  the  right. 

21  But  the  same  thing  could  be  said  of  the  Charter  of  1215  with  only 
slightly  less  accuracy.    It  would  not  have  enforced  itself  in  the  long  run, 
even  if  clause  61   had  been   retained.     The  principle   that   the  king  is 
bound  by  a  definite  body  of  law  would  never  have  led  to  anything  with- 
out the  established  practice  of  coercion,  to  be  exercised  anew  from  age 
to  age  as  changed  conditions  brought  on  new  crises,  unprovided  for  in 
the  experience  of  the  past.     It  is  the  complete  transfer  of  sovereignty 
to   Parliament   which  has   eliminated   the   king   from   the   constitutional 
struggles  of  modern  times  and  essentially  changed  their  character. 

22  "Erat  videre  dolorem  in  populo,  quia  nesciebant  praelati  vel  magnates 

[296] 


IMMEDIATE  RESULTS  OF  MAGNA  CARTA 

problem  the  barons  of  the  middle  of  the  century  met 
as  it  had  been  met  a  generation  earlier.  They  at- 
tempted no  break  with  the  past.  In  the  next  case  to 
be  noted,  in  1244,  as  in  1258,  they  copied  its  model 
and  built  on  the  lines  it  had  established,  and,  though 
the  particular  thing  they  sought  to  do  was  slightly 
different,  and  their  machinery  was  more  developed, 
their  purpose  was  identical,  the  suspension  of  the  king 
from  office  in  certain  particulars  for  the  protection 
of  the  community.  This  purpose  was  a  little  more 
clearly  perceived ;  it  was  a  little  more  widely  applied ; 
and  the  machinery  by  which  it  was  to  be  carried  out 
had  been  somewhat  improved.23  But  they  found  their 
starting  point  in  clause  61  and  they  made  no  change 
which  touched  essentially  principle  or  method,  no 

quo  nodo  suum  Prothea,  scilicet  regem,  tenerent,  etiamsi  omnia  haec  con- 
cederet,  quia  in  omnibus  metas  transgreditur  veritatis,"  M.  Par.,  V.  494 
(1255).  The  statement  is  repeated  in  the  account  of  the  May  meeting 
of  1258  as  explanation  of  the  adjournment  till  June,  with  the  addition 
of  the  phrase  "quia  arduum  fuerat  negotium  et  difficile,"  ibid.,  V.  689. 
23  The  improvement  of  machinery  in  the  proposed  arrangement  of  1244, 
as  compared  with  that  of  1215,  consists  in  the  fact  that  the  commission 
of  the  barons  was  not  to  take  into  its  own  hands  a  function  of  the  king's 
for  exercise  in  special  cases,  but  that  it  was  to  appoint  the  great  officers 
of  the  crown  who  were  to  exercise  royal  powers  in  the  government  as  a 
whole  and  so  provide  for  a  more  complete  suspension  of  the  king.  While 
this  arrangement  is  entirely  in  line  with  that  of  1215,  the  exact  sugges- 
tion of  the  appointment  of  the  officers  probably  came  from  another 
source,  perhaps  from  expedients  of  the  minority,  perhaps  from  the  abuse 
of  the  great  seal  complained  of  by  the  barons.  I  think  it  possible  to  do 
something  more  than  has  yet  been  done  towards  working  out  the  origin 
of  this  assumption  of  the  right  of  appointment.  In  stating  the  relation- 
ship between  the  experiments  of  1244  and  1258,  I  am  following  what 
may  be  called  the  orthodox  opinion.  See  Stubbs,  II.  Sec.  175;  and  Tout, 
Polit.  Hist,  of  Engl.,  III.  66. 

[297] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

change  so  vital  that  the  experience  of  the  intervening 
time  may  not  easily  account  for  it  as  a  natural  growth. 
Nor  should  it  be  forgotten  that  one  of  the  twenty- 
five  appointed  under  that  clause  was  one  of  the  com- 
mission of  twelve  chosen  in  1244  to  put  into  form  the 
virtual  suspension  of  the  king.24  We  do  not  know 
that  this  arrangement,  which  has  been  called  a  paper 
constitution,  ever  actually  went  into  force;  the  king 
refused  to  accept  it,  but  in  1258  a  real  constitution 
was  formed,  more  or  less  completely  in  operation  for 
many  months. 

Looked  at  as  a  work  of  the  thirteenth  century,  the 
Provisions  of  Oxford  are  a  great  improvement  on 
clause  61  of  Magna  Carta,  both  in  the  object  to  be 
accomplished  and  in  the  machinery  for  doing  it.  Such 
advance  in  purpose  and  character  was  forced  on  the 
barons  by  the  situation.  What  they  had  to  do  now 
was  not  to  provide  for  the  correcting  of  a  number  of 
specific  abuses,  of  a  generally  uniform  character, 
which  might  be  done  by  assuming  a  single  preroga- 
tive of  the  king's,  as  in  the  court  created  by  clause  61. 
They  needed  rather  to  provide  for  the  whole  govern- 
ment, to  take  it  out  of  the  hands  of  an  incompetent 
king,  who  could  not  be  reformed,  and  conduct  it  in 

24  M.  Par.,  IV.  362-368.  It  is  plain  from  the  character  of  the  last  part 
of  the  document  recorded  by  Matthew  Paris  that  it  is  a  memorandum 
merely,  and  from  the  reference  to  the  nova  carta  at  its  beginning  that 
it  would  finally  have  stood  to  the  completed  constitution  which  it  was 
proposed  to  form  in  much  the  same  relation  as  that  of  the  Articles  of 
the  Barons  to  Magna  Carta. 

[298] 


IMMEDIATE  RESULTS  OF  MAGNA  CARTA 

the  interests  of  England.  A  purpose  so  much  larger 
compelled  machinery  on  a  larger  scale  and  of  a 
broader  scope.  But  it  was  the  same  in  type.  Clause 
61  provided  for  the  exercise  by  the  court  of  twenty- 
five  of  one  of  the  most  important  of  the  king's  pre- 
rogatives, if  he  refused  to  use  it  himself  to  reform 
some  definite  abuse.  It  provided  further,  if  this  first 
step  proved  unavailing,  for  the  temporary  suspension 
of  the  king  by  moving  war  against  him.  To  those  of 
the  barons  who  remained  faithful  to  the  Charter  in 
the  struggle  which  followed  John's  repudiation  of  it, 
it  seemed  necessary  to  remove  him  permanently  and  to 
put  another  sovereign  in  his  place.  This  extreme 
step  was  never  contemplated  by  the  Charter.  It  was 
not  quite  in  harmony  with  the  spirit  of  the  long  pro- 
cess by  which  the  constitution  was  made,  or,  if  it  can- 
not be  denied  that  it  was  a  logical  inference  from  it, 
it  was  going  to  an  extreme  almost  never  called  for. 
If  we  pass  over  the  case  of  John,  such  a  step  proved 
really  necessary  but  once,  in  1688,  and  then  not  for 
the  creation,  but  for  the  preservation,  of  the  consti- 
tution.25 In  this  particular  the  Provisions  of  Oxford 

25  Appeal  to  force  was  necessary  in  the  case  of  Richard  II.  and  of 
Charles  I.  But  the  earlier  reign  of  Richard  shows  conclusively  that  the 
extreme  step  taken  was  not  necessary  against  him,  and  the  same  thing 
is  highly  probable  of  Charles  I.  Edward  II.'s  deposition  was  not  in 
reality  a  constitutional  case  at  all,  though  it  was  necessary  to  try  to 
make  it  seem  so,  and  though  it  did  serve  as  a  precedent  for  later  action 
in  cases  that  were  more  truly  in  the  line  of  constitutional  development. 
In  truth,  however,  the  right  of  deposition  and  not  that  of  electing  the 
king  was  the  essential  one  upon  which  the  security  of  the  constitution 

[299] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

were  exactly  in  line  with  the  intention  of  clause  61, 
with  what  it  was  hoped  that  clause  would  accom- 
plish, but  they  show  a  great  advance  over  it.  Like 
the  modern  constitution,  they  would  make  civil  war 
and  the  deposition  of  the  sovereign  impossible,  if  they 
were  put  fully  into  operation,26  and  the  object  of  the 
machinery  set  up  by  clause  61  really  was  to  make  it 
possible  to  avoid  an  appeal  to  arms. 

If  one  will  compare  carefully  in  the  object  sought 
and  in  the  intended  details  of  operation  when  put  into 

depended.  The  old  Teutonic  election  was  as  empty  a  form  in  England 
as  in  France.  The  right  of  choosing  the  successor  of  a  deposed  king 
was  a  logical  but  unessential  result  of  the  right  of  deposition.  What 
was  absolutely  necessary  to  the  continued  existence  of  the  constitution 
was  the  right  of  deposing  a  king  already  in  possession  of  the  throne, 
or  of  holding  this  fate  in  reserve  as  a  means  of  coercion.  That  the  right 
of  election  received  later  so  much  more  emphasis  than  the  right  from 
which  it  was  derived  was  due  to  accidents  of  the  situation  at  the  acces- 
sion of  one  dynasty  after  another,  while  few  occasions  arose  for  the 
exercise  of  the  more  fundamental  right.  It  would  be  of  course  impos- 
sible that  the  right  of  deposition  should  be  formally  embodied  in  the 
public  law  of  any  state  not  on  the  verge  of  dissolution.  See  the  account 
of  this  period  in  Plehn's  Matheus  Parisiensis — a  very  interesting  dis- 
cussion, but  too  theoretical  and  too  strongly  influenced  by  apparent 
analogies  in  the  institutional  history  of  Germany.  The  treatment  of  the 
question  of  election  to  the  crown  in  Roessler's  Kaiserin  Matilda  agrees 
better  with  the  facts. 

26  No  real  similarity  between  the  Provisions  of  Oxford  and  the  present 
constitution  must  be  supposed.  The  only  historical  connection  between 
them  is  that  the  Provisions  were  one  stage  in  the  development,  clarifying 
and  enforcement  of  the  idea  that  the  king  is  bound  by  the  law.  The 
final  constitution  was  built  on  no  detail  of  the  scheme.  To  say  that  the 
responsibility  of  the  officers  of  the  crown  to  the  great  council,  which 
they  established,  foreshadows  the  ministerial  responsibility  of  today,  is 
to  use  language  which  is  permissible  rhetorically,  but  it  is  not  the  lan- 
guage of  science.  One  might  as  well  say  with  Hallam  (Middle  Ages, 
chapter  VIII.  pt.  2),  that  the  deposition  of  Longchamp  in  1191  is  "the 

[300] 


IMMEDIATE  RESULTS  OF  MAGNA  CARTA 

force,  clause  61,  the  arrangement  of  1244,  and  the 
Provisions  of  Oxford,  I  believe  it  will  be  found  impos- 
sible to  deny  that  they  are  all  of  one  piece,  all  framed 
on  one  model,  to  solve  essentially  the  same  problem. 
They  show  only  those  changes  which  the  passage  of 
a  generation,  and  the  naturally  changing  situation 
required.  The  plan  of  1244  is  the  intermediary,  the 
connecting  link,  between  Magna  Carta  and  the  Pro- 
visions of  Oxford.  It  may  be  fairly  called  this  because 
it  stands  out  most  prominently,  and  is  the  most  com- 
plete proposal  between  these  two  so  far  as  we  know. 
It  would  perhaps  be  more  accurate  to  say  that  there 
are  evidences  earlier  that  the  plan  of  temporarily 

earliest  authority  for  a  leading  principle  of  our  constitution,  the  respon- 
sibility of  ministers  to  Parliament."  There  is  no  line  which  runs  from 
the  earlier  fact  to  the  later.  The  two  facts  grew  out  of  the  independent 
conditions  of  two  different  civilizations.  There  was  no  Parliament  to 
enforce  the  Provisions  of  Oxford,  only  the  feudal  curia  regis;  they  could 
draw  strength  from  no  nation,  only  from  a  feudal  class.  One  civilization 
was  indeed  beginning  to  give  way  to  the  other,  but  it  was  the  old  which 
still  had  possession  of  the  field.  In  ultimate  purpose  the  constitution 
of  1258  was  premature;  in  process  it  was  already  almost  obsolete.  It  is 
also  as  unfair  to  criticise  the  framers  of  the  Provisions  of  Oxford  for 
not  expressing  ideas  beyond  their  political  horizon,  as  it  is  to  hold  the 
barons  of  1215  accountable  for  the  same  defect.  The  objection  most 
often  made  against  their  scheme  of  government  is  that  it  established  an 
oligarchy  and  made  no  provision  for  the  representation  of  the  commons. 
But  I  believe  that  this  idea  was  still  impossible  in  1258.  The  use  of  the 
word  commun,  as  in  the  Provisions,  Stubbs,  8.  C.,  p.  388,  which  is  cor- 
rectly enough  translated  "commonalty,"  is  of  occasional  occurrence  in 
the  documents  of  the  time,  but  I  do  not  believe  that  we  should  be  right 
in  giving  to  it  any  more  specific  meaning  than  we  should  to  the  phrase 
communitas  regni.  See  communam  regni,  M.  Par.,  Hist.  Angl.,  III.  51. 
It  meant  primarily  the  barons,  but  it  was  beginning  to  mean  in  a  sec- 
ondary sense  the  whole  body  which  we  should  call  the  nation,  or  such 
portion  of  it  as  had  any  interest  in  public  affairs,  for  whom  the  barons 

[301  ] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

vesting  in  another  the  prerogatives,  or  a  prerogative, 
of  the  king,  as  a  means  of  holding  him  in  check,  had 
not  been  forgotten,  and  that  between  1244  and  1258 
there  are  further  instances  of  the  demand  of  some 
such  scheme,  or  of  the  bringing  of  it  forward  as  a 
suggestion  or  a  threat.27 

By  1258  not  merely  had  abuses,  financial  and  other, 
grown  to  be  intolerable,  but  circumstances  favoured 
decisive  action  as  they  had  not  before.  In  the  first 
place  Earl  Richard,  who  might  have  stood  between 
the  monarchy  and  the  complete  carrying  out  of  any 
revolutionary  scheme,  was  out  of  the  country.28  Again 

were  acting  not  because  they  thought  of  themselves  as  representatives, 
for  that  idea  also  was  still  in  the  future,  but  because  they  were  the 
only  portion  of  the  communitas  regni  yet  accustomed  to  take  part  in 
the  operation  of  government.  In  saying  this  I  do  not  overlook  the  fact 
that  four  years  earlier,  in  1254,  knights  had  been  elected  in  the  counties 
to  inform  the  council  of  the  local  decision  regarding  a  proposed  grant 
of  money  to  the  king,  but  on  this  incident  see  the  discussion  in  chapter 
VII.  If  the  opinion  I  have  expressed  in  the  present  note  is  proved  to 
be  incorrect,  it  will  be  done,  I  think,  by  obtaining  more  light  on  the 
proceedings  which  led  up  to  the  Provisions  of  Westminster,  and  a  clearer 
understanding  of  what  that  document  itself  implies  in  relation  to  the 
whole  crisis.  It  is  greatly  to  be  regretted  that  we  have  no  statement 
of  the  reasons  which  led  Simon  de  Montfort  to  disagree  with  the  other 
barons  about  the  Provisions  of  Oxford,  and  to  promise  his  adherence 
to  them  with  reluctance.  They  might  be  instructive  upon  this  point. 
See  Prothero,  Simon  de  Montfort,  p.  200,  citing  the  Chronicon  de  Laner- 
cogt,  p.  67,  and  B£mont,  Simon  de  Montfort,  citing  a  translation  of 
William  of  Nangis  in  Bouquet,  Hist,  de  Fr.,  XXIII.  17,  cf.  William  de 
Nangis,  Gesta  Sancti  Ludovici,  Bouquet,  XX.  414,  and  Chron.  (ed.  Soc. 
Hist,  de  Fr.),  I.  224,  and  n.  3. 

27  In  any  detailed  constitutional  history  of  the  period,  these  cases,  espe- 
cially those  of  1237,  1248,  1249,  and  1255,  should  receive  careful  attention. 

28  There  is  some  evidence  to  justify  the  opinion  that  Richard  was  quite 
willing  to  push  his  opposition  to  the  king  to  a  certain  point,  but  that 

[302] 


IMMEDIATE  RESULTS  OF  MAGNA  CARTA 

the  great  body  of  the  higher  baronage  was  united  on 
one  side,  against  the  king  and  his  foreign  favourites, 
and  had  with  it  the  strong  support  of  the  minor 
barons.  Finally,  perhaps  alone  sufficient  to  explain 
the  result,  the  opposition  to  the  king  had  found  what 
it  had  lacked  heretofore,  adequate  leadership.29  It  is 
hardly  possible  to  call  Simon  de  Montfort  a  political 
genius.  To  me  at  least  he  seems  to  have  mismanaged, 
almost  grossly,  what  he  had  to  do  both  in  Gascony 
and  in  England.  But  he  had  certain  qualities  and 
elements  of  character  peculiarly  demanded  in  the 
leader  of  a  revolution  against  established  government. 
His  most  marked  trait  is  the  most  necessary  in  such  a 
leader,  his  immense  power  of  will,  his  inflexible  deter- 
mination. Imperious  his  will  was,  overbearing  his 
own  judgment  as  well  as  all  criticism  and  opposition 
of  others,  impolitic  to  a  degree,  but  it  was  unhesitating 
and  unyielding,  it  took  no  account  of  odds  or  danger, 
it  saw  the  one  result  to  be  reached  and  neither  heaven 
nor  hell  should  block  the  way.  To  this  must  be  added 
a  strong  sympathy  with  justice,  vigor  of  action,  more 
than  the  average  of  military  skill,  and,  I  think  I  am 

when  measures  began  to  seem  revolutionary,  or  to  affect  the  royal  pre- 
rogative, he  drew  back.  His  defection  from  the  cause  of  Richard 
Marshal  in  1233  was  a  serious  blow  to  that  attempt  to  force  a  reforma- 
tion, and  see  M.  Par.,  Hist.  Angl.,  III.  51,  n.  1,  and  Ckron.  Maj.,  V.  514. 
29  The  leadership  of  Simon  de  Montfort  in  the  general  opposition  which 
leads  to  the  Provisions  of  Oxford  does  not  seem  to  me  to  be  rendered 
doubtful  by  the  fact  that  he  did  not  agree  with  the  final  arrangements 
adopted.  It  seems  clear  that  his  objection  was  because  they  did  not 
go  far  enough.  See  the  references  in  note  26. 

[303] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

not  wrong,  the  vaulting  ambition  of  Macbeth.  Per- 
haps it  needed  Simon  de  Montfort's  personal  griev- 
ances against  the  king  to  put  him  at  the  head  of  a  revo- 
lution, but  once  there  he  threw  into  it  the  whole 
strength  of  a  nature  powerful  and  gifted,  but  not 
always  wise,  and  possibly  not  always  sincere. 

It  is  not  my  purpose  to  discuss  here  the  details  of 
the  Provisions  of  Oxford,  nor,  what  stands  more  in 
need  of  discussion,  the  relation  to  them  of  the  Pro- 
visions of  Westminster.  The  scheme  was  an  elabo- 
rate one.  It  sequestered  the  king  entirely  from  the 
government.  It  may  indeed  be  said  of  it  that  it  put 
the  kingship  into  commission,  though  that  was  an  idea 
not  possible  to  the  time.  All  the  operations  of  the 
state,  financial,  administrative,  judicial,  legislative, 
were  to  be  carried  on  under  a  direct  responsibility  to 
the  great  council.  A  series  of  commissions  and  ap- 
pointed officers,  including  a  new  king's  council,  was 
to  conduct  the  government,  and  the  great  council 
vested  its  supervising  authority  in  a  committee,  prac- 
tically to  be  in  continuous  session.  The  king  was  not 
deposed.  In  form  all  prerogatives  were  still  exer- 
cised by  him,  all  writs  and  royal  letters  were  issued 
in  name  by  him,  even  when  he  was  a  helpless  prisoner 
in  the  hands  of  the  earl  of  Leicester.  The  Provisions 
of  Oxford  set  up  machinery  to  take  the  government 
out  of  the  hands  of  a  king  who  persistently  refused 
to  administer  it  in  the  interests  of  the  country,  with- 
out the  necessity  of  deposing  him,  or  of  bringing  on 

[304] 


IMMEDIATE  RESULTS  OF  MAGNA  CARTA 

civil  war.30  This  was  clause  61  of  Magna  Carta  over 
again  more  broadly  framed  and  more  explicitly  stated. 

To  recapitulate :  the  Provisions  of  Oxford  find  their 
origin  in  Magna  Carta  and  rest  directly  upon  it. 
They  draw  from  it  their  underlying  idea,  the  right 
to  coerce  the  king;  their  form,  commissions  assuming 
prerogatives  of  the  king  and  so  far  forth  suspending 
him  from  office;  and  their  general  purpose,  to  secure 
the  rights  of  the  community  against  a  king  who  per- 
sistently refused  to  regard  them.  They  are  connected 
with  it  by  a  continuous  line  both  of  confirmations  of 
the  Charter  and  of  suggestions  and  experiments  in 
the  way  of  similar  machinery. 

But  the  Provisions  show  a  great  advance.  They 
are  more  elaborate  in  machinery,  wider  in  scope  and 
logically  more  complete.  But  more  important  still 
it  was  much  less  their  object  to  enforce  specific  rights 
of  individuals  which  could  be  drawn  up  in  an  exact 
list  than  was  that  of  the  Charter.  Their  object  was 
rather  to  enforce  the  general  right  of  the  community 
of  the  ruled  to  good  government,  administered  by 
natural,  as  they,  said,  that  is,  national  officers.  The 
document  in  which  they  are  embodied  has  more  nearly 
the  nature  and  form  of  a  written  constitution.  This 
is  the  great  advance.  This  it  is  which  makes  the 
Provisions  of  Oxford  the  first  and  longest  step  in  the 

30  War  was  threatened  against  those  who  should  oppose  themselves  to 
the  Provisions.  See  the  king's  writ  in  English.  Rymer,  I.  378;  Stubbs, 
8.  C.,  p.  396,  and  compare  Ann.  Wykes,  p.  119,  for  the  royalist  view. 

[305] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

transformation  of  the  feudal  principles  of  Magna 
Carta  into  the  guiding  principles  of  constitutional 
growth.  The  Provisions  of  Oxford  do  look  towards 
the  future  more  clearly  than  the  Great  Charter,  but 
not  because  they  are  a  break  with  the  past,  not  because 
they  are  a  new  beginning,  rather  because  they  are 
building  from  foundation  stones  of  the  old  on  farther 
into  the  walls  of  the  final  structure. 

The  Barons'  War  which  followed  was  in  principle 
the  same  as  that  which  followed  John's  repudiation 
of  the  Charter.  The  diffidatio  which  the  barons  issued 
before  beginning  their  campaign  in  1263,  with  its 
salva  persona  regis,  regine,  et  liberorum  suorum, 
seems  based  on  the  text  of  clause  6 1.31  Simon  de 
Montfort's  formulation  of  the  right  of  insurrection, 
in  the  confirmation  of  the  charters  which  was  issued 
as  one  of  the  conditions  of  the  release  of  Edward  from 
his  obligations  as  hostage  for  his  father,  in  March, 
1265,  is  of  especial  interest.  The  document  is  a  pecu- 
liar one  among  confirmations.32  It  was  made  to  suit 
the  occasion  in  other  ways  than  that  which  gives  it  its 
common  name,  but  its  documentary  connection  with 
Magna  Carta  is  clear  enough.33  In  the  end  the  barons 
were  defeated  and  the  Provisions  overthrown,  but 
they  left  as  their  legacy  to  the  future  the  two  prin- 

31  See  Liber  de  Antlquis  Legibus,  p.  53. 

32  Liceat  omnibus  de  regno  nostro  contra  nos  insurgere.     Stubbs,  S.  C., 
p.  416. 

33  See  for  example  the  phrase:  quo  facto  nobis  sicut  prius  intendentes 
existant.    Stubbs,  8.  C.,  p.  417. 

[306] 


IMMEDIATE  RESULTS  OF  MAGNA  CARTA 

ciples  on  which  Magna  Cart  a  rested,  which  might 
have  perished  without  their  renewed  emphasis.34 

The  reign  of  Edward  I.  saw  no  repetition  of  the 
experiment  of  1258.  Edward  was  a  king  against 
whom  such  an  expedient  was  unnecessary,  as  it  would 
have  been  impossible.  The  reign  was  occupied  with 
the  equally  important  effort  to  take  the  first  steps  in 
the  constitution  of  Parliament.  But  in  one  particular 
the  reign  carried  forward  the  line  of  development 
represented  by  the  Provisions  of  Oxford.  In  1297 
Edward  was  forced,  by  means  the  same  as  those  em- 
ployed so  many  times  against  his  father,  to  confirm 
Magna  Carta,  and  to  go  a  step  farther.  The  con- 
firmation included  what  was  really  an  addition  to  the 
Charter,  in  truth  a  restoration  to  it  of  clause  12  which 
had  been  dropped  in  1216,  so  thought  of  and  intended 
at  the  time,35  and  so  treated  in  the  future.  It  was 

34  One  result  of  the  reign  of  Henry  III.  ought  not  to  be  overlooked, 
though  perhaps  it  belongs  rather  to  political  than  to  constitutional  his- 
tory.    That  is  the  formation  of  a  distinct,  and  almost  in  our  sense  of 
the  word  an  organized  party  of  opposition  which  proved  to  have  a  con- 
tinuous, or  almost  continuous,  history.     Until  it  was  absorbed  into  the 
later  Parliamentary  opposition,  this  party  was  baronial,  and  often  more 
partisan  and  selfish  than  broadly  patriotic,  but  it  was  the  instrument 
by  which   the  work   of  continuing  the  tradition   of   Magna   Carta   was 
accomplished    until    Parliament    had    reached    a    stage    of    development 
which  enabled  it  to  assume  the  task. 

35  The  petition  of  the  barons  which  preceded  the  confirmation  bears  in 
the  chronicle  of  Walter  of  Hemingburgh   (ed.  Hamilton),  II.  152,  the 
title  Articuli  inserti  in  Magna  Carta,  and  even  if  we  cannot  be  sure  that 
these  are  more  than  the  words  of  this  contemporary  and  fairly  accurate 
chronicler,  they  indicate  to  some  extent  the  feeling  about  the  effect  of 
what  was  then  done.     The  insertion  of  the  main  point  of  the  petition 
about  taxation  in  the  formal  confirmation  which  followed  makes  it  dis- 

[307] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

more,  however,  than  a  restoration  of  clause  12.  It 
was  a  restatement  of  it  in  such  form  as  to  include  not 
merely  the  specific  taxation  of  the  feudal  age,  but  so 
also  as  to  affirm  the  broad  principle  of  consent  to  all 
taxation,  not  resting  on  the  basis  of  feudal  property. 
It  is  clause  12,  that  is,  the  principle  of  the  feudal  law 
concerning  extraordinary  taxation,  broadened  out  to 
cover,  in  intention  at  least,  the  new  methods  of  taxa- 
tion of  the  modern  state.  This  enlargement  of  the 
law  that  binds  the  king,  was  the  initial  point  of  all  the 
great  increase  of  that  law  during  the  next  century, 
and  it  was,  as  I  have  said,  forced  from  the  king  in  the 
same  way  that  similar  concessions  were  forced  from 
Henry  III.  It  belongs  in  other  words  not  in  the  line 
of  the  Parliamentary  development  of  the  constitution 
as  that  is  seen  later,  but  in  the  line  of  the  origin  of 
the  constitution  as  that  ran  through  the  thirteenth 
century.  This  line  is  continued  by  the  Lords  Ordain- 
ers  in  1310,  but  the  connexion  of  their  work  with  the 
Provisions  of  Oxford  needs  no  emphasis  here.36 

It  is  to  be  said  of  all  such  schemes,  however,  that 
they  are  revolutionary  when  looked  at  from  the  point 
of  view  of  the  ordinary  law,37  the  law  as  administered 
in  the  courts  and  found  in  the  books  of  the  law  writers, 

tinctly  an  addition  to  the  Charter,  that  is,  to  the  body  of  law  which  the 
king  must  observe. 

36  Stubbs,  Sec.  251 ;  Tout,  Polit.  Hist,  of  Engl,  III.  244,  248. 

37  Louis  IX.  was  quite  right  in  his  decision  annulling  the  Provisions  of 
Oxford  by  the  Mise  of  Amiens,  for  this  was  the  only  point  of  view  from 
which  he  could  look  at  the  question.     He  did  not  see  the  inconsistency 
of  this  part  of  his  decision  with  that  maintaining  Magna  Carta  in  force, 

[308] 


so  far  at  least  as  these  do  not  touch  upon  questions 
of  the  constitution.38  In  this  field  the  king  was  then, 
as  he  is  today,  above  the  law.  He  was  not  subject  to 
its  processes;  he  was  not  bound  by  its  provisions.  A 
Henry  III.  might  be  guilty  of  fraud  or  forgery  with 
impunity.  This  is  the  ever  present  contradiction  of 
English  history,  but  it  is  also  the  secret  of  the  making 

as  the  barons  appear  to  have  done,  or  some  of  their  supporters  at  least 
somewhat  later.  Ann.  Wore.,  p.  448;  Chron.  de  Bellis  (ed.  Halliwell), 
p.  17. 

38  They  nearly  all  do  to  some  extent  touch  upon  the  constitution,  and  then 
this  fundamental  contradiction  is  apt  to  occur  more  or  less  plainly.  In 
the  case  of  Bracton,  it  has  excited  considerable  discussion,  but,  except 
for  its  early  date,  it  should  occasion  no  more  remark  than  in  the  case 
of  Blackstone.  See  Bracton's  N.  B.,  I.  29-33;  Mcllwain,  The  High  Court 
of  Parliament,  pp.  101-103.  It  should  not  be  overlooked  that  the  prob- 
ably apocryphal  passage  in  certain  Bracton  MSS.,  in  which  the  right 
of  the  curia  to  hold  in  check  the  king  is  stated  in  the  most  extreme 
terms,  is  certainly  of  the  thirteenth  century,  and  probably  earlier  than 
1290.  Bracton,  f.  34,  ed.  Twiss,  I.  268;  cf.  Maitland,  Braeton's  N.  B., 
I.  30-33.  See  Blackstone,  Bk.  I.,  chapters  VI.  and  VII.  With  the  clari- 
fying of  ideas  and  the  settling  of  many  questions  of  the  application  of 
ideas  in  practice,  which  has  taken  place  in  a  hundred  and  fifty  years, 
it  is  probable  that  to  the  modern  student  Blackstone  seems  to  emphasize 
the  limited  at  the  expense  of  the  absolute  aspect  of  the  monarchy,  more 
clearly  than  he  did  to  the  young  Prince  George  when  he  read  the 
Commentaries  in  manuscript  as  a  part  of  his  education  in  the  business 
of  a  king.  The  contrast  in  Blackstone  is  less  sharp,  less  dogmatic,  than 
in  Bracton,  in  part  because  he  deals  with  the  two  sides  of  the  kingship 
in  the  same  portion  of  his  work,  so  that  one  naturally  qualifies  the 
other,  and  in  part  because  at  the  middle  of  the  eighteenth  century  the 
compound  nature  of  royalty,  its  relation  on  one  side  to  prerogative  and 
on  the  other  to  the  fundamental  law  of  the  state,  was  more  clearly 
perceived.  There  is  nothing  in  Blackstone,  however,  on  either  side  which 
is  not  the  logical  development  of  what  is  to  be  found  in  Bracton.  The 
clearest  statement  of  the  principle  that  the  king  is  bound  by  the  law, 
in  the  great  series  of  English  constitutional  documents,  is  in  the  Bill 
of  Rights  of  1689,  but  it  is  also  made  clear  in  the  articles  drawn  up 
against  Richard  II.  at  the  time  of  his  deposition  in  1399. 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

of  that  unique  constitution,  most  anomalous  and  in- 
consistent, but  perhaps  on  that  account  most  adapt- 
able, of  all  time.  It  was  by  the  working  together  of 
these  two  contradictory  principles,  the  king  is  above 
the  law,  the  king  is  subject  to  the  law,  that  a  mon- 
archy, retained  in  form,  preserving  all  that  is  useful 
in  a  monarchy,  was  transformed  into  a  self-governing 
republic,  politically  democratic. 


[310] 


IMMEDIATE  RESULTS  OF  MAGNA  CARTA 

NOTE  A.    THE  ARGUMENT  FOR  THE  BARONS 
(Page  293.) 

SEE  the  arguments  of  the  Song  of  Lerves.  In  this  contemporary 
poem  the  justification  of  the  barons'  conduct  rests  mainly  on 
what  may  be  called  the  theological  or  speculative  argument,  as 
that  had  been  developed  for  instance  by  John  of  Salisbury.  See 
Dunning,  Political  Theories,  pp.  186-187;  Poole,  Medieval 
Thought,  pp.  233-235 ;  The  Song  of  Lerves,  ed.  Kingsford,  notes, 
pp.  113-118.  The  idea  that  the  king  is  subject  to  the  law  is 
clearly  enough  expressed,  but  the  law  is  not  the  law  of  the  state, 
not  constitutional  law  in  our  sense,  but  the  divine  law,  natural 
equity  and  justice.  In  this  sense  it  is  that  the  barons  do  not 
enslave  the  king,  as  God  is  not  enslaved  by  the  fact  that  He 
cannot  sin.  They  rather  make  him  free  by  bringing  him  back 
to  his  allegiance  to  the  law  (11.  671-700).  The  only  idea  differ- 
ent from  this  which  is  suggested  as  justification  for  the  barons 
is  that  as  it  is  the  duty  of  the  barons  to  defend  the  kingdom  from 
the  results  of  invasion  by  foreign  enemies,  so  it  must  be  to  defend 
it  from  internal  enemies  and  dangers  (11.  539  fF).  If  this  argu- 
ment were  developed  it  would  be  a  justification  of  the  barons 
drawn  from  the  feudal  idea  of  their  function  in  the  state,  but 
it  is  not  developed  and  the  discussion  drifts  immediately  into  the 
theological  argument.  The  author  of  the  poem  seems  to  be  most 
troubled  by  the  difficulty  of  showing  the  right  of  the  barons,  not 
to  remove  evil  councillors,  but  to  impose  others  on  the  king,  and 
this  is  of  course  the  weak  point  of  their  case  considered  as  a 
matter  of  legal  right.  We  may  regret  greatly  that  we  have  no 
copy  of  the  Abbreviatio  de  principatu  regni  et  tyrannidis  which 
Bishop  Grosseteste  wrote,  and  which  Simon  de  Montfort  appar- 
ently had  in  his  possession  (Monumenta  Franciscana,  p.  110; 
Stevenson,  Grosseteste,  p.  270),  but  if  we  had,  it  is  not  likely 
that  we  should  then  have  any  more  full  information  than  now  of 
the  grounds  of  right  on  which  the  barons  supposed  themselves 
acting.  The  word  abbreviatio  in  the  title  may  indicate  that  the 

[311] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

work  was  not  original  with  Grosseteste,  that  he  had  merely  sum- 
marized for  practical  use  some  older  treatise.  In  any  case  it  is 
very  improbable  that  he  stepped  outside  the  circle  of  ideas  on 
the  subject  which  were  familiar  to  the  educated  clergy  of  his 
time.  The  incident  is  of  greatest  value  to  us  as  revealing  one 
line  of  connexion  by  which  these  philosophical  and  theological 
ideas  were  brought  to  bear  directly  upon  the  chief  actors  in  the 
revolution.  But  their  influence  should  not  be  overrated.  They 
no  doubt  encouraged  the  barons  and  made  them  believe  that  their 
cause  was  just  and  had  the  sanction  of  heaven,  but  they  could 
not  originate  action.  If  the  barons  had  known  nothing  of  these 
ideas,  they  would  have  been  led  by  the  practical  situation  and 
the  historical  precedents  to  do  exactly  what  they  did,  and  with- 
out these  they  would  not  have  acted  upon  the  philosophical 
notions.  In  saying,  then,  that  in  1215  the  community  established 
a  right  to  compel  the  king  to  regard  the  law,  I  do  not  mean  such 
basis  of  right  as  the  Song  of  Lewes  sought  to  formulate.  Such 
abstract  forms  of  justification  will  necessarily  vary  from  age  to 
age  under  the  influence  of  men's  changing  philosophical  predis- 
positions. What  had  been  established  was  a  practical  right,  the 
right  of  precedent;  men  felt  themselves  authorized  by  what  had 
happened  in  the  past  to  do  something  of  the  kind  which  the  pres- 
ent seemed  to  require,  though  no  doubt  from  time  to  time  con- 
temporary philosophical  ideas  strengthened  men's  opinions  and 
gave  them  confidence.  Nor  do  I  mean  that  the  specific  legal 
principle  on  which  the  barons  acted  in  1215,  the  diffidatio,  was 
more  permanent.  Like  many  of  the  feudal  rights  which  they 
sought  to  protect  in  the  Charter,  and  which  form  the  first  content 
of  the  law  which  the  king  was  bound  to  observe,  it  disappeared 
in  time.  It  left  behind,  however,  the  precedent  and  the  practical 
right  of  calling  the  king  to  account. 

In  regarding  these  cases  as  precedents  for  later  action,  they 
are  to  be  considered  in  two  respects  in  which  they  differ  from 
one  another  quite  distinctly,  in  respect  to  their  value  as  prece- 
dents in  law,  and  as  precedents  in  time  of  revolution.  Black- 
stone  with  judicial  caution  lays  down  the  principle  which  should 

[312] 


IMMEDIATE  RESULTS  OF  MAGNA  CARTA 

rule  in  deciding  how  far  they  should  be  thought  to  determine 
law,  strictly  speaking,  and  in  this  particular  we  should  not  go 
beyond  him.  In  speaking  of  the  case  of  James  II.  he  says:  "So 
far  as  this  precedent  leads,  and  no  further,  we  may  now  be 
allowed  to  lay  down  the  law  of  redress  against  public  oppres- 
sion. If,  therefore,  any  future  prince  should  endeavour  to  sub- 
vert the  constitution  by  breaking  the  original  contract  between 
king  and  people,  should  violate  the  fundamental  laws,  and  should 
withdraw  himself  out  of  the  kingdom;  we  are  now  authorized 
to  declare  that  this  conjunction  of  circumstances  would  amount 
to  an  abdication,  and  the  throne  would  be  thereby  vacant.  But 
it  is  not  for  us  to  say  that  any  one,  or  two,  of  these  ingredients 
would  amount  to  such  a  situation;  for  there  our  precedent  would 
fail  us."  Commentaries,  I.  245.  It  must  be  noticed,  however, 
that  Blackstone  is  speaking  of  strict  law,  and  that  in  actual  crises, 
like  that  of  1688,  precedents  like  these  strengthen  the  belief  of 
the  nation  that  it  has  the  right  to  protect  itself  and  its  future  by 
action  which  it  may  nevertheless  recognize  as  revolutionary. 


[313] 


CHAPTER  VII 

THE  END  or  THE  PERIOD  OF  ORIGIN 

In  the  baronial  movement  against  the  king  in  1258 
the  fundamental  principle  of  Magna  Carta,  that  the 
king  is  subject  to  law,  was  reaffirmed  in  more  definite 
and  more  advanced  form  because  in  more  definite  and 
more  advanced  institutional  expression.  Later  in 
the  same  movement  the  complementary  principle,  the 
right  to  appeal  to  arms  to  enforce  upon  the  king  con- 
formity to  the  law,  was  also  reaffirmed  in  the  Barons' 
War  and  in  the  Confirmation  of  the  Charters.  Con- 
temporary with  this  movement,  and  in  part  coming 
out  of  it,  appeared  the  beginnings  of  another  insti- 
tutional growth  of  the  greatest  importance  in  Eng- 
lish history.  So  great  is  the  part  which  Parliament 
came  to  play  in  the  actual  making  of  the  constitution, 
as  the  guardian  of  its  formative  principles  during 
early  stages  of  their  development,  and  agent  and 
actor  in  their  final  expression,  and  so  closely  con- 
nected were  the  origins  of  Parliament  with  the  oppo- 
sition to  Henry  III.  in  its  later  phases,  that  it  seems 
necessary  to  notice  to  some  extent  the  early  history  of 
Parliament.  It  is  not  proposed  to  trace  in  full  detail 
the  process  of  origin.  That  is  unnecessary  from  any 
point  of  view,  and  especially  so  here,  because  my  own 

[314] 


THE  END  OF  THE  PERIOD  OF  ORIGIN 

opinion  is  very  clear,  as  already  expressed,  that  the 
active  assistance  of  Parliament  in  the  formation  of  the 
limited  monarchy  and  its  function  as  the  guardian  of 
the  constitution,  belong  to  a  later  and  not  to  the 
earliest  stage  in  the  history  of  the  constitution.  It  is 
desirable,  however,  to  call  attention  here  to  certain 
of  the  facts  relating  to  the  origin  of  Parliament  and 
to  certain  important  relationships. 

Institutionally  considered,  the  origin  of  Parliament 
consists  in  bringing  into  the  feudal  curia  regis,  the 
great  council  of  the  first  half  of  the  thirteenth  century, 
down  to  that  time  unchanged,  certain  persons  who  had 
no  standing  in  it  according  to  the  strict  feudal  ideas 
of  an  earlier  time,  except  as  they  might  be  given  it  in 
special  cases  by  a  direct  exercise  of  the  king's  pre- 
rogative.1 The  question  of  origin  is  a  twofold  one: 

i  It  is  an  interesting  fact  in  the  institutional  history  of  England  that, 
after  the  permanent  division  into  two  houses  in  the  next  century,  the 
upper  house  was  consciously  regarded  as  continuing  the  curia  regis  and 
the  lower  house  as  something  foreign  to  it.  This  is  to  be  seen  in  such 
facts  as  the  freedom  of  the  members  of  the  upper  house,  but  not  of  the 
lower,  from  trial  by  jury;  in  some  of  the  features  of  the  struggle  between 
statutes  and  ordinances;  in  the  continued  judicial  power  of  the  upper 
house  in  which  the  lower  had  no  share;  and  in  the  form  of  the  impeach- 
ment trial,  so  extraordinary  that  it  is  impossible  to  suppose  that  it  could 
ever  have  been  invented  de  novo,  but  easily  seen  to  be  a  most  simple 
and  natural  process  when  we  carry  it  back  to  the  old  curia  regis  and 
consider  the  relation  to  that  of  the  new  elements  which  formed  the  House 
of  Commons.  As  having  no  part  in  the  judgment  making  function  of 
the  upper  house,  the  lower  easily  assumed  that  of  the  prosecutor.  It 
may  be  added  to  what  is  said  above  of  statutes  and  ordinances  that  the 
history  of  the  struggle  in  the  fourteenth  century  to  secure  the  right  of 
the  new  elements'  which  had  been  added  to  the  old  curia  regis  to  parti- 
cipate in  all  legislation,  together  with  the  fact  that  legislation  of  this 

[315] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

first,  by  what  actual  steps  were  these  persons  brought 
into  the  curia  regis,  and  second,  under  the  influence 
of  what  ideas,  what  led  to  their  introduction  and  what 
was  supposed  to  be  accomplished  by  it.  There  should 
be  added,  for  a  complete  account  of  the  period  of 
origins,  the  further  question,  what  effect  did  their 
introduction  have  upon  the  curia  itself? 

It  is  impossible  to  examine  even  superficially  the 
question  of  the  origin  of  Parliament  without  being 
struck  at  once  with  a  fact  of  considerable  significance : 
no  one  at  the  time  perceived  that  any  change  of  im- 
portance was  taking  place.  It  attracted  no  special 
attention  to  itself.  Neither  in  the  records,  nor  in 
the  chroniclers,  is  there  any  evidence  that  anything 
thought  to  be  unusual,  or  to  make  a  sharp  break  with 
customary  ways  of  doing  things,  was  seen  to  be  going 
on.2  Whatever  explanation  is  offered  of  the  origin 
of  Parliament  it  must  be  one  which  shows  the  first 
steps  to  have  been  taken  in  line  with  things  already 
going  on,  with  no  wide  divergence  at  any  rate  from 
processes  in  common  use,  or  from  current  ideas.  We 

new  type  took  the  form  of  petitions,  seems  to  imply  that  the  House  of 
Commons  regarded  itself  at  the  beginning  of  its  career  as  having  a 
doubtful  right  to  share  in  legislation,  and  an  unqualified  right  in  the 
matter  of  taxation  only.  This  would  be  probable  on  other  grounds  also. 
Taxation  as  requiring  originally  in  theory  at  least  individual  consent 
would  stand  in  different  relation  to  the  House  of  Commons  from  legis- 
lation, for  this  had  been  the  exclusive  right  of  the  curia  regis. 
2  See  the  note  in  Stubbs,  II.,  Sec.  214.  The  word  "Parliament"  was  not 
associated  in  any  sense  in  the  minds  of  contemporaries  with  the  rise  of 
a  new  institution.  It  had  been  in  occasional  use  for  at  least  ten  years 
before  1254  for  the  old  unchanged  curia  regis. 

[316] 


THE  END  OF  THE  PERIOD  OF  ORIGIN 

are  led  to  suppose,  for  instance,  by  what  occurs  that 
by  the  middle  of  the  thirteenth  century  a  consider- 
able decline  of  older  feudal  ideas  must  have  taken 
place.  While  there  is  no  doubt  but  that  it  would 
have  been  thought  to  be  quite  within  the  king's  right 
a  hundred  years  earlier,  to  invite  a  member  of  the 
county  court,  and  possibly  even  a  burgess,  to  attend 
a  session  of  the  curia  regis,  on  occasion,  if  the  king 
had  undertaken  to  act  upon  this  right  in  any  whole- 
sale way,  to  add  a  large  body  to  the  curia  by  summon- 
ing men  from  the  county  courts  or  boroughs  all  over 
England,  it  is  altogether  probable  that  the  attempt 
would  have  found  a  much  larger  place  in  the  chroni- 
clers than  is  given  to  it  when  it  was  actually  done  in 
the  last  half  of  the  thirteenth  century.  The  function 
of  these  new  elements  in  the  curia  regis  during  the 
first  half  century  or  more  after  their  introduction 
must  have  seemed  so  nearly  identical  with  some  simi- 
lar function  already  performed  by  members  of  the 
same  class,  in  circumstances  of  the  same  kind,  as  not 
to  appear  to  contemporaries  a  marked  departure 
from  things  familiar. 

It  is  generally  considered  that  the  first  step  in  the 
continuous  evolution  of  Parliament  was  taken  in 
1254.3  Early  in  that  year  the  king  in  Gascony,  find- 
ing an  extraordinary  need  of  money  for  his  expenses, 
actual  and  contemplated,  determined  to  attempt  the 
raising  of  an  aid  in  England  from  those  who  were 

3  See  note  A  at  the  end  of  the  chapter  (p.  339). 

[317] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

not  coming  to  his  assistance  in  person.  His  expe- 
riences in  such  attempts  in  recent  years  had  not  been 
happy.  He  had  indeed  quite  as  much  reason  to 
expect  refusal  as  consent.  By  some  one  in  the  king's 
counsels  the  suggestion  seems  to  have  been  made  that 
if  the  consent  of  the  counties  could  be  obtained  in 
advance,  and  that  consent  made  known  authorita- 
tively to  the  council  the  chance  of  success  would  be 
greatly  increased.  It  was  probably  also  thought  that 
if  the  king's  necessities  were  fully  explained  and  put 
in  the  right  light,  by  the  sheriffs  to  the  county  courts, 
they  would  readily  agree  to  such  a  tax.  This  was  the 
plan  at  any  rate  which  was  adopted.  On  the  eleventh 
of  February,  a  writ  was  issued  from  Windsor  by  the 
queen  and  the  earl  of  Cornwall,  who  were  conducting 
the  government  in  the  absence  of  the  king,  directing 
the  sheriffs  to  act  upon  such  a  plan.4 

The  writ  is  an  interesting  one  in  more  ways  than 
one,  but  it  cannot  be  here  considered  in  detail.  It 
first  informs  the  sheriff  that  the  major  barons  have 
promised  their  military  service  to  the  king  in  Gas- 
cony,  and  directs  him  to  summon  the  minor  barons 
in  his  county,  those  holding  twenty  librates  of  land 
in  capite,  to  the  same  service.  These  all  were  to  meet 
in  London,  on  the  third  of  May.  Besides  these, 
prceter  omnes  prccdictos,  the  sheriff  is  directed  to  send 
before  the  council  at  Westminster  on  April  26,  two 
legal  and  discreet  knights  whom  the  county  shall 

«  Stubbs,  S.  C.,  pp.  375-377. 

[318] 


THE  END  OF  THE  PERIOD  OF  ORIGIN 

choose  for  this  purpose,  ad  hoc,  instead  of  the  whole 
county,  vice  omnium  et  singulorum,  to  provide,  ad 
providendum,  with  knights  from  the  other  counties 
what  aid  they  were  willing  to  give  the  king.  If  the 
writ  stopped  at  this  point,  I  think  we  should  have 
little  doubt  that  the  knights  were  chosen  to  act  in  a 
representative  capacity  and  that  they  were  to  consult 
together  and  decide  about  the  aid  after  they  had  met 
at  Westminster.  But  the  writ  does  not  stop  here. 
It  goes  on  to  direct  the  sheriff  to  explain  fully  to  the 
county  court  what  the  king's  necessities  were  and  to 
induce  the  county  to  agree  to  a  sufficient  aid,  so  that 
the  delegated  knights  may  be  able  to  make  an  exact 
answer  to  the  council  for  the  county.  The  decision 
is  clearly  to  be  made  in  the  county  court  and  the 
function  of  the  knights  is  to  carry  it  to  the  council 
and  to  certify  it  officially.  That  this  interpretation 
is  correct  is  made  more  evident  by  the  language  of 
the  writ  issued  upon  the  same  day  to  the  archbishop 
of  Canterbury  directing  him  to  convoke  the  inferior 
clergy  subject  to  him,  to  induce  them  in  the  same 
way  to  grant  a  liberal  aid,  and  to  see  that  they  certify 
the  council  at  the  same  date  by  discreet  men  the 
amount  and  manner  of  aid  quod  certificent  consilium 
nostrum  ....  per  viros  discretes  .  .  .  .  de  modo 
et  quantitate  prsedicti  subsidii.5  Clearly  the  function 
of  the  delegates  was  to  report  a  decision  already 

5  Printed  in  Prynne,  Brief  Register  of  Parliamentary  Writs,  I.  3-4,  from 
Rot.  Claus.,  38,  Henry  III.  7,  d. 

[319] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

reached  by  the  local  body.  The  modern  idea  of  repre- 
sentation is  not  to  be  found  here  in  spite  of  the  lan- 
guage in  the  writs  to  the  sheriffs,  except  so  far  as  it 
may  be  involved  in  mere  delegation,  the  knights  speak- 
ing for  the  county  in  making  known  officially  its 
decision.6 

There  can  be  no  doubt,  I  think,  but  that  the  prac- 
tice in  use  at  the  time  which  seems  to  have  been  most 
closely  followed  in  summoning  the  knights  from  the 

6  It  seems  to  me  also  that  there  are  grounds  at  least  for  raising  the 
question  whether  the  meeting  of  April  26,  to  which  the  knights  were  to 
report,  was  a  great  council.  The  first  impression  given  by  the  writ  of 
February  11,  is  that  it  was  not  so  intended.  The  knights  were  directed 
to  report  on  that  day  while  the  tenants-in-chief  were  summoned  to  be 
in  London  with  their  military  forces  on  the  third  of  May  and  pre- 
sumably would  not  be  expected  to  have  their  preparations  completed 
and  to  be  there  a  week  earlier.  A  considerable  portion  of  the  tenants- 
in-chief  were  also  already  with  the  king  in  Gascony.  The  record  dated 
May  17,  Cal.  Pat.  Rolls,  p.  370,  shows  that  a  "parliament"  was  held  at 
the  later  date,  but  indicates  nothing  as  to  its  character.  The  words  of 
the  writ  of  February  11,  coram  consilio  nostro,  while  they  could  unques- 
tionably be  used  at  that  date  of  the  great  council,  are  to  be  naturally 
interpreted  of  the  small  curia  regis,  and  I  think  would  be  more  nat- 
urally so  understood  in  1254.  The  chroniclers  (M.  Par.,  V.  440;  Ann. 
Dunst.,  p.  190;  /.  Oxenedes,  p.  179),  certainly  describe  the  meeting  of 
April  26  in  the  same  terms  that  they  would  use  of  a  meeting  of  the 
great  council,  but  the  accuracy  of  the  chroniclers  in  regard  to  finer  insti- 
tutional distinctions  is  not  sufficient  to  overcome  any  weight  of  docu- 
mentary evidence.  The  exactness  of  Paris's  account  is  doubtful  also 
because  his  three  weeks'  delay  would  carry  the  date  of  meeting  on  to 
May  17,  which  does  not  agree  with  the  entry  on  the  Patent  Rolls  cited 
above,  nor  his  statement  that  they  had  waited  that  length  of  time  for 
Earl  Richard  with  the  entry  on  p.  368  of  the  calendar  which  shows 
Richard  in  Windsor  on  April  24,  though  following  entries  are  attested 
by  the  queen  alone  which  may  mean  Richard's  absence.  There  is  noth- 
ing to  indicate  where  he  could  have  been.  It  should  be  noticed  also  that 
the  question  of  the  aid  did  not  concern  the  baronage  as  a  whole  but  only 
those  who  had  not  been  summoned  to  personal  service.  See  the  letter  of 

[320] 


THE  END  OF  THE  PERIOD  OF  ORIGIN 

counties  in  1254,  and  in  what  they  were  asked  to  do, 
was  that  employed  in  sending  the  record  of  a  case 
tried  in  the  county  court  to  the  central  king's  court. 
The  practice  was  not  an  uncommon  one  and  a  number 
of  instances  of  it,  transcribed  from  the  rolls,  occur  in 
Bracton's  Note  Book  and  present  many  points  of 
similarity  with  the  writ  of  February  11.  They  are 
discreet  and  legal  knights,  pi.  1730;  they  are  sent 
per  comitatum,  40;  they  come  pro  comitatu,  212; 
they  act  and  speak  pro  comitatu,  40,  1436;  pro  toto 
comitatu,  445 ;  their  action  is  the  action  of  the  county, 
1019,  1672.7  Their  number  is  almost  always  four, 
but  we  have  six,  pi.  212,  and  two,  pi.  1077,  and  Mait- 
land,  Pleas  of  the  Crown,  pi.  115.  Here  was  cer- 
tainly a  direct  line  of  connection  between  the  county 

February  14  in  Shirley,  II.  102.  The  "great  council"  of  the  editor's  mar- 
ginal note  has  no  warrant  in  the  text.  The  evidence  is  inconclusive  either 
way,  but  I  am  inclined  to  believe  that  no  meeting  of  the  great  council 
was  called  for  April,  and  that  what  met  was  the  ordinary  council,  rein- 
forced very  possibly  by  a  few  other  magnates,  a  reinforcement  which 
would  require  no  special  summons  and  would,  at  that  date,  still  seem 
an  entirely  natural  expansion.  Whether  it  became  in  this  way  large 
enough  to  be  actually  a  great  council  must  be  left  undecided  and  is  not 
a  matter  of  importance.  The  council,  whatever  it  was,  apparently 
received  the  report  of  the  chosen  delegates  and  listened  to  an  account 
of  the  king's  insincerity  from  the  earl  of  Leicester.  M.  Par.,  V.  440. 
It  may  possibly  have  sanctioned  a  proposition  of  the  clergy  to  transfer 
to  the  king's  use  in  Gascony  the  first  year's  returns  from  the  tithe  for 
the  crusade  on  the  conditions  stated  in  Earl  Richard's  letter,  Shirley,  II. 
102,  Ann.  Dunst.,  189,  but  it  refused  the  king  any  further  aid. 
f  The  pro  comitatu,  pro  toto  comitatu,  of  these  writs  is  every  indi- 
cation that  we  get  in  the  political  documents  of  this  time  of  any  con- 
sciousness of  the  representative  idea.  It  seems  to  me  impossible  to  assert 
that  this  is  anything  more  than  the  merest  nascent  germ  of  the  idea  as 
we  hold  it. 

[321  ] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

court  and  the  king's  council  (pi.  67,  1189),  already 
established  and  in  frequent  use.  The  function  of  the 
two  knights  in  1254  seems  to  be  the  same.  They 
brought  to  the  king's  council,  in  order  officially  to 
attest  it,  a  record  which  had  been  made  in  the  county, 
in  this  case  a  decision  of  the  local  body,  the  county 
court,  for  or  against  the  granting  of  an  aid  to  the 
king. 

That  the  function  which  they  performed  had  indi- 
rectly much  in  common  with  that  of  the  jury  is  also 
evident:  they  made  known  to  the  council  the  local 
opinion  and  feeling  on  the  question  proposed.  The 
practical  result  is  not  different.  But  if  the  two  pro- 
cesses are  compared  step  by  step,  it  will  be  clear 
beyond  question,  I  think,  that  the  action  of  the  two 
knights  in  1254  corresponds  far  more  closely  with 
that  of  the  knights  carrying  a  record  than  with  the 
jury.8 

8  The  fact  must  also  not  be  overlooked  that  the  jury  was  primarily  an 
institution  of  the  itinerant  justice  court  and  of  the  corresponding  per- 
manent central  court  at  Westminster.  Cases  where  a  jury  appears 
clearly  before  the  council  are  very  few.  See  Staff.  Hist.  Coll.,  IV.  96. 
I  know  of  no  certain  case  in  Bracton's  Note  Book.  Cf.  pi.  1209.  A 
recognition  reported  to  the  council  is  another  matter.  See  pi.  1249  for 
the  process.  Nor  is  the  fact  that  a  recognition  appears  on  a  cor  am 
rege  roll  evidence.  The  point  is  not  of  great  importance  because  the 
failure  of  the  first  part  of  the  thirteenth  century  to  make  any  sharp 
distinction  between  the  three  courts,  Council,  King's  Bench,  and  Common 
Pleas,  which  afterwards  became  distinct,  is  so  apparent  that  in  the  first 
place  an  occasional  case  of  the  appearing  of  a  jury  before  the  council 
proper  would  not  be  strange,  and  in  the  second  place  a  borrowing  of 
the  jury  function  from  the  central  court  and  applying  it  in  a  case  like 
that  of  1254  to  a  question  before  the  council  would  not  seem  to  contem- 

[322] 


THE  END  OF  THE  PERIOD  OF  ORIGIN 

If  this  explanation  of  the  model  followed  is  ac- 
cepted, it  is  evident  also  that  no  question  could  arise 
of  the  standing  in  the  council,  under  the  feudal  law, 
of  such  a  body  of  men  from  the  county  courts  who 
were  apparently  not  tenants-in-chief,9  since  they  were 
present  in  no  sense  as  members  of  the  council,  but 
merely  as  attesting  officially  a  record  which  they 
were  commissioned  to  carry. 

Xo  more  than  this  can  be  said  of  the  four  knights 
who  in  1258  were  to  report  to  the  council  on  local 
abuses  in  the  counties  and  complaints  against  the 
sheriffs,  hardly  so  much  indeed.  The  representative 
idea  does  not  appear  in  any  form  in  connection  with 
their  action.  It  is  clear  that  they  were  appointed  by 
the  central  government,  not  chosen  in  the  counties, 
and  the  character  of  their  office  is  indicated  clearly 
by  the  direction  given  them  to  bring  personally  the 

poraries  to  be  an  extraordinary  departure  from  common  practice.  It 
is  far  more  likely,  however,  that  the  practice  which  served  as  a  model 
was  the  more  frequent  and  familiar  one  in  constant  use  in  the  business 
of  the  council,  of  sending  knights  from  the  county  court  with  a  record 
of  its  action. 

9  It  is  possible  of  course  that  tenants-in-chief  holding  less  than  twenty 
librates  of  land  might  have  been  included  among  the  knights  delegated, 
or  in  some  counties  perhaps  formed  the  whole  delegation,  but  the  chances 
as  indicated  by  the  language  of  the  writ  are  rather  against  such  a  sup- 
position. The  number  of  tenants-in-chief  holding  less  than  twenty 
librates  in  any  county  who  would  be  called  knights  in  1254  and  who 
were  not  either  major  barons  in  some  other  county,  or  due  to  serve  in 
the  field  as  rear  vassals  for  some  other  holding,  was  very  small.  The 
servitium  debitum,  however,  does  not  seem  to  have  been  called  out  for 
personal  service  in  this  campaign.  It  usually  was  not  for  service  in 
France  in  the  thirteenth  century.  On  the  position  of  these  knights,  see 
the  note  in  Stubbs,  II.,  Sec.  214. 

[323] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

results  of  their  inquests,  sealed  with  their  own  seals, 
and  those  of  the  others  through  whom  they  have  made 
the  inquisition,  to  Westminster  consilio  nostro  ibi- 
dem. This  is  merely  the  case  of  an  attested  presen- 
tation to  the  council  of  a  recognition  made  locally,  a 
frequent  practice.  Very  possibly  the  knights  who 
brought  it  might  be  questioned  by  the  council,  but 
they  certainly  were. not  chosen  for  any  deliberative 
purpose.10 

It  is  in  1261  that  we  get  the  first  indication  of 
knights  summoned  from  the  counties  who  are  to  take 
part  in  the  discussion  of  general  interests  with  the 
body  which  they  are  called  to  meet.  On  September 
11  of  that  year,  Henry  III.  issued  writs  to  the  sher- 
iffs in  which  he  states  first  that  the  earls  of  Leicester 
and  Gloucester  and  other  magnates  have  called  three 
knights  from  each  of  the  counties  quod  sint  coram 
ipsis  at  St.  Albans  on  September  21  secum  tractaturi 
super  communibus  negotiis  regni  nostri;  and  second, 
that  on  the  same  day,  September  21,  he  and  the  said 
magnates  are  going  to  meet  at  Windsor  ad  tractan- 
dum  de  pace  inter  nos  et  ipsos.  He  therefore  directs 

10  For  the  writ  commissioning  the  four  knights  see  M.  Par.,  VI.  396,  and 
Ann.  Burton,  p.  456.  Matthew  Paris's  own  account,  V.  714,  is  in  strict 
agreement  with  the  writ.  His  substitution  of  barnagio  for  consilio,  as 
the  body  to  whom  the  recognition  is  to  be  brought,  is  interesting.  He 
says  the  writ  was  sent  to  the  four  knights,  while  Burton  says  it  was 
sent  to  the  sheriffs,  which  it  clearly  was  not.  Cal.  Pat.  Rolls,  1258,  pp. 
G45-649,  shows  plainly  that  the  knights  were  appointed,  as  also  do  the 
words  of  the  apology  for  delay  issued  by  the  government  on  October  20, 
in  the  direction  that  wrongs  committed  be  shown  as  quatre  chevalers  ke 
nus  avum  a  coe  aturne.  Stubbs,  8.  C.,  p.  398. 

[324] 


THE  END  OF  THE  PERIOD  OF  ORIGIN 

the  sheriffs  to  cause  these  knights  to  come  to  Windsor 
on  that  day,  nobiscum  super  praemissis  colloquium 
habituros.  What  the  king  says  of  the  writ  issued  by 
the  barons  is  all  that  we  know  of  it,  and  from  this  it 
does  not  appear  whether  the  three  knights  are  to  be 
elected  or  were  named  by  the  barons,  though  the 
implication  of  the  king's  writ  is  rather  that  the  latter 
was  the  case.  It  is  also  not  clear  what  body  they  were 
summoned  originally  to  meet.  The  king  says  the 
barons  had  summoned  them  coram  ipsis,  but  he  might 
have  said  that  of  the  council  provided  for  by  the  Pro- 
visions of  Oxford.  Or  the  words  may  mean  no  more 
than  that  the  magnates  wished  to  get  together  repre- 
sentatives of  the  minor  barons  who  were  supporting 
them  to  talk  over  the  situation — to  hold  a  council  of 
war  of  their  party,  rather  than  what  would  be  tech- 
nically, or  would  be  assumed  by  them  to  be  techni- 
cally, a  great  council  of  the  kingdom.  The  idea, 
however,  that  the  knights  called  for  were  to  take  part 
in  a  consultation  to  be  held  after  they  met  with  the 
magnates  must  have  been  clear  in  the  original  writ. 
Again  the  king's  writ  gives  us  no  more  definite  infor- 
mation about  his  purpose  in  the  summons  than  about 
the  barons'.  He  says  they  are  to  hold  a  colloquy  with 
him  super  prsemissis,  but  whether  the  premises  are  the 
super  negotiis  of  the  barons'  writ  or  the  de  pace  of 
his  is  not  evident.  It  any  case  it  would  seem  that 
their  share  in  the  proposed  business  was  not  to  be  a 
very  active  one,  for  it  is  implied  that  the  chief  object 

[325] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

of  their  attendance  is  that  they  may  see  and  under- 
stand that  the  king  proposes  nothing  against  the 
honor  and  common  utility  of  the  kingdom.  Xor  does 
the  king's  writ  give  us  any  evidence  that  the  meeting 
at  Windsor  was  to  be  that  of  a  great  council,  though 
it  most  likely  was  intended  to  be,  in  fact  if  not  in  form. 

Confining  ourselves  to  a  strict  interpretation  of  the 
one  piece  of  evidence  which  we  have,  we  must  say  of 
the  incident  of  1261  then  that  there  is  in  it  no  indi- 
cation of  any  choice  of  delegates  by  the  counties,  nor 
of  a  representative  capacity  in  anything  like  the 
modern  sense,  nor  of  any  connection  with  the  great 
council,  but  that  we  do  get  here  for  the  first  time 
evidence  of  an  intention,  on  the  part  of  the  barons  at 
least,  to  have  selected  knights,  we  know  not  how,  take 
part  in  a  discussion  to  be  held  in  some  central  body. 
Even  if  we  reduce  the  case  to  these  lowest  dimensions, 
we  may  still  fairly  count  it  a  step  towards  the  future 
Parliament.11 

The  advance  which  we  may  at  least  say  was  fore- 
shadowed in  the  write  of  1261,  was  made  beyond  any 
question  and  with  every  appearance  of  a  clear  inten- 
tion in  June,  1264.  The  writ,  which  bears  the  date 
of  June  4,  served,  like  many  writs  of  about  this  time, 

11  The  king's  writ  of  September  11  is  in  Stubbs,  S.  C.,  p.  405.  There  is 
no  evidence  that  the  meeting  which  he  said  was  to  be  held  at  Windsor 
took  place,  but  the  Annals  of  Wykes  say  that  the  barons  refused  to  hold 
a  conference  (parliamentare)  with  the  king  in  September.  There  is 
nothing  in  the  king's  character  which  makes  it  impossible  to  suppose 
that  when  he  said  in  the  writ  that  such  a  meeting  would  be  held,  he  did 
so  without  warrant  from  the  barons. 

[326] 


THE  END  OF  THE  PERIOD  OF  ORIGIN 

a  double  purpose.12  In  the  first  place,  it  appointed 
Adam  of  Newmarket  custodian  of  the  peace  in  the 
county  of  Lincoln,  and  gave  him  instructions  as  to  his 
duties.  Second,  it  directed  him  to  send  to  the  Par- 
liament about  to  be  held  in  London  pro  toto  commi- 
tatu  four  of  the  more  legal  and  discreet  knights  per 
assensum  ejusdem  commitatus  ad  hoc  electos  .... 
nobiscum  tractaturi  de  negotiis  prasdictis,  that  is, 
nostris  et  regni  nostri.  There  would  seem  to  be  no 
ambiguity  here  either  as  to  what  was  to  be  done  or  as 
to  the  purpose  for  which  it  was  done.  The  delegates 
called  for  are  to  be  elected  by  the  county,  they  are  to 
act  for  the  county,  not  in  the  mere  reporting  of  some 
action  taken  locally,  but  in  discussing  and  determin- 
ing national  action  not  yet  decided  upon,  and  the  body 
with  which  they  are  called  to  meet  and  act  is  the  great 
council.  It  is  possible  that  if  we  had  the  barons'  writ 
of  1261  we  should  find  the  same  things  as  clearly 
expressed  in  it,  but  we  cannot  conclude  this  from  the 
king's  writ,  and  with  our  present  evidence  we  are 
shut  up  to  saying  that  the  Parliament  which  was 
meeting  in  London  about  June  24  was  the  first  in 
which  we  can  see  unmistakably  the  beginning  of  the 
new  institution.  This  is  not  saying  that  the  earlier 
incidents  we  have  noticed  were  not  preparatory  to 
this  step,13  but  it  is  saying  that  in  no  one  of  them  can 

12  Stubbs,  8.  C.,  p.  411. 

13  Only,  however,  in  the  sense  of  making  familiar  the  appearance  of  a 
large  body  of  knights  from  the  counties  before  the  council.     The  essen- 
tial departure  from  the  past,  without  which  we  do  not  yet  have  the  new 

[327] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

we  prove  the  occurrence  of  anything  which  is  essen- 
tial to  the  new.  We  must  not  forget,  however,  that 
the  writ  of  June  4,  though  in  form  a  king's  writ,  was 
really  issued  by  the  insurgent  barons  lately  victorious 
at  Lewes.  An  innovation  of  this  kind  made  by  a  revo- 
lutionary party,  in  the  full  tide  of  revolutionary  in- 
fluences, and  needing  to  maintain  its  internal  union 
as  closely  as  possible,  is  not  the  same  thing  as  if  made 
by  the  historical  and  established  government.  The 
final  adoption  of  the  change  might  even  be  delayed 
by  such  a  fact. 

The  writs  issued  in  December,  1264,  calling  to- 
gether the  famous  Parliament  of  Simon  de  Mont- 
fort  of  January,  1265,  add  nothing  to  the  writ  of  the 
preceding  June  except  the  summons  to  citizens  and 
burgesses.14  As  the  evidence  has  come  down  to  us, 
we  are  obliged  to  judge  the  form  of  summons  to  these 
new  elements,  added  to  the  old  curia  regis,  by  the 
form  in  the  summons  to  the  bishop  of  Durham.  If 
we  do  so,  we  must  say  that  the  summons  of  December 
is  less  clear  and  explicit  than  that  of  June.  It  is 
highly  probable,  however,  either  that  in  the  actual 
writs  to  the  sheriffs  and  towns  the  form  was  as  full 
as  in  June,  or  that  it  would  be  understood  to  mean 
as  much  and  be  acted  upon  in  the  same  way.  If  we 
make  this  assumption,  we  may  suppose  at  this  time 

institution — the  actual  taking  part  with  others  in  the  central  body  in 
the  discussion  of  an  undecided  question,  and  presumably  having  a  voice 
in  its  decision — is  lacking  to  our  present  knowledge  in  every  earlier  case, 
i*  Stubbs,  8.  C.,  p.  415. 

[328] 


THE  END  OF  THE  PERIOD  OF  ORIGIN 

also  election,  representation,  and  participation  in  the 
business  to  be  done.  It  is,  I  think,  fair  to  say  that  the 
writs  of  June  were  as  much  Simon  de  Montfort's  as 
those  of  December,  to  consider  the  two  practically 
one  case,  and  therefore  to  attribute  to  him,  or  to  some 
one  in  his  party  at  least,  the  entire  innovation,  of 
which  in  complete  form  we  have  here  the  first  evidence. 
This  includes,  if  the  present  discussion  of  the  earlier 
cases  has  led  to  correct  conclusions,  not  merely  the 
admittance  of  burgesses,  but  also  of  knights  of  the 
shire  to  full  standing  in  the  great  council,  to  full  stand- 
ing so  far  as  the  form  of  words  used  in  the  summons 
is  concerned,  whatever  position  they  may  have  occu- 
pied in  actual  discussions.  Undoubtedly,  as  Bishop 
Stubbs  says,  this  meeting  "was  not  primarily  and 
essentially  a  constitutional  assembly."  It  was  a  revo- 
lutionary assembly  of  the  party  of  the  barons.  But 
in  the  forms  observed  it  was  constitutional,  evident 
pains  were  taken  with  that  side  of  things,  and  it  was 
beyond  question  the  theory  of  Simon  de  Montfort  and 
his  supporters  that  it  was  legally  a  great  council. 

Though  this  Parliament  of  Simon  de  Montfort 
contains  all  the  constituent  elements  of  the  historical 
English  Parliament,  lords,  county  members,  and 
borough  members,  it  is  easily  possible  to  estimate  too 
highly  its  influence  upon  the  future.  It  falls  still 
within  the  age  of  preparation.  It  is  the  beginning 
of  an  epoch  of  change,  not  its  full  fruition.  To  call 
it  the  origin  of  the  House  of  Commons  in  any  except 

[  329  ] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

the  narrowest  sense,  the  sense  of  the  occurrence 
together  for  the  first  time  of  these  new  elements, 
would  be  a  serious  error.  The  act  was  not  creative. 
It  determined  nothing,  rendered  nothing  necessary. 
It  merely  foreshadowed  what  was  to  be,  and  thirty 
years  passed  before  exactly  the  same  thing  in  all  par- 
ticulars occurred  again.  The  greatest  importance  to 
us  of  the  Parliament  of  January,  1265,  is  as  a  sign 
that  the  vast  economic  and  social  changes,  which  in 
the  end  determine  the  legal  and  the  constitutional, 
and  which  we  can  trace  at  work  in  England  from  the 
dawn  of  the  century  if  not  before,  were  beginning 
to  affect  the  forms  of  government.  These  ultimate 
forces  were  certain  to  accomplish  this  result  before 
very  long.  It  was  inevitable  at  a  time  when  stricter 
feudal  ideas  were  rapidly  disappearing  and  in  a 
regime  which  was  one  of  classes  only,  that  a  class  so 
distinct  as  the  burgesses,  having  so  many  interests 
peculiar  to  themselves  in  the  conduct  of  government, 
and  having  also  such  rapidly  increasing  power  and 
such  means  of  making  their  power  promptly  felt, 
should  be  drawn  into  the  central  assembly,  not  per- 
haps because  of  any  desire  or  demand  of  their  own  but 
because  their  support  and  concurrence  had  become 
important.  The  same  changes  with  the  same  consti- 
tutional effects  were  taking  place  in  many  European 
states,  and  in  the  history  of  the  movement  as  a  whole 
the  place  of  England  is  late  rather  than  early.15 

15  Peculiarities  in  the  history  of  the  English  Parliament  as  compared 

[330] 


THE  END  OF  THE  PERIOD  OF  ORIGIN 

Representatives  of  the  third  estate  would  beyond  any 
reasonable  doubt  have  been  summoned  to  the  great 
council  by  the  close  of  the  century  if  Simon  de  Mont- 
fort's  writs  had  never  been  issued  and  for  reasons  dif- 
ferent from  those  which  influenced  his  action,  the 
necessity  of  sustaining  by  every  means  a  dangerous 
position.  When  the  age  of  preparation,  of  feeling 
after  the  final  form,  was  at  last  over,  and  the  new 
institution,  the  Parliament  of  the  future,  opened  its 
continuous  history,  received  into  itself  the  elements 
which  were  henceforth  to  constitute  it,  in  the  model 
Parliament  of  1295,  there  is  no  evidence  that  any  one 
recalled  the  experiment  of  Simon  de  Montfort  as  a 
precedent  or  that  it  had  any  influence  upon  what  was 
then  done.  In  the  interval  of  thirty  years  between 
1265  and  1295  almost  every  conceivable  experiment 
in  the  form  and  character  of  a  deliberative  assembly 
for  the  nation  had  been  tried. 

It  is  of  course  true  that  if  the  burgesses  were  cer- 
tain to  be  admitted  into  the  older  institution  there 
was  nothing  in  that  fact  or  in  any  other  circumstance 
of  the  time  that  determined  the  form  and  character 
which  the  new  institution  was  to  assume,  and  this  was 
a  question  of  vital  importance  for  the  future.  Upon 

with  other  countries  make  their  appearance  only  when  its  organization 
begins  to  take  shape  and  the  minor  barons  unite  with  the  burghers  and 
the  first  estate  withdraws,  leaving  a  Parliament  of  two  houses  only. 
The  peculiarities  which  affect  English  constitutional  history  in  the  devel- 
opment of  liberty  through  Parliament  are  due  to  peculiarities  of  local 
government  rather  than  of  ideas  relating  to  general  government  or  to 
Parliament  itself. 

[  331  ] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

it  depended  the  existence  of  the  constitution  quite  as 
much  as  upon  the  survival  and  the  broadened  signifi- 
cance of  the  ideas  of  the  Great  Charter,  for  in  the 
course  of  a  century  Parliament  was  to  assume  the 
task  of  forming  the  limited  monarchy  in  place  of  the 
inefficient  baronial  party.  Before  the  middle  of  the 
fourteenth  century  indeed  the  barons  had  clearly 
shown  themselves  incapable  of  the  constructive  work 
demanded  of  them.  The  Provisions  of  Oxford  stand 
as  their  high  water  mark  above  which  they  were  never 
able  to  rise.  The  future  of  the  constitution,  the  pos- 
sibility of  the  limited  monarchy,  depended  on  the 
character  of  the  new  institution  which  was  coming 
into  existence  during  this  formative  age.  In  this 
sense  we  may  say  that  the  thirty  years  of  Parliamen- 
tary experimenting  form  truly  the  critical  period  of 
English  constitutional  history. 

More  than  one  period  in  the  constitutional  history 
of  England  may  rightly  be  called  critical.  The  con- 
cluding years  of  the  reign  of  Richard  II.,  and  the 
periods  of  the  Yorkist,  Tudor,  and  Stuart  dynasties 
are  all  critical  in  one  sense  of  the  word.  But  in  none 
of  these  was  anything  more  than  the  form  of  the  result 
really  at  stake.  Its  essential  character  was  never 
involved.  The  attempt  of  Richard  II.  to  reverse  the 
course  of  things  was  very  skilful  and  to  a  certain 
point  successful,  but  it  fell  in  a  time  of  most  rapid 
and  vigorous  constitutional  growth,  and  if  the  acci- 
dental personal  element  in  the  case  had  not  furnished 

[332] 


THE  END  OF  THE  PERIOD  OF  ORIGIN 

a  leader  to  the  opposition  one  would  have  been  found 
elsewhere.  We  have  at  least  every  reason  to  believe 
so  from  the  consummate  leadership  that  must  in  some 
form  have  directed  the  marvellous  constitutional  ad- 
vance of  the  fourteenth  century.  The  revolution  of 
1399  might  have  been  postponed  for  a  short  time,  but 
Richard  could  not  have  prevented  it  nor  have  de- 
fended himself  against  it. 

The  Tudors  were  the  heirs  of  the  Yorkist  monarchy, 
and  constitutionally,  from  the  present  point  of  view, 
the  periods  are  to  be  considered  one.  While  the  will 
of  the  sovereign  during  this  period  was  as  supreme 
in  the  control  of  public  affairs  as  under  the  early 
Angevin  kings,  and  while  a  despotism  was  established 
theoretically  full  of  the  most  insidious  danger  to  the 
constitution,  practically  circumstances  which  were  of 
the  very  nature  of  the  situation  compelled  an  amount 
of  dependence  upon  Parliament  or  alliance  with  it 
which  prevented  any  permanently  disastrous  result. 
Some  years  before  the  close  of  the  period  it  became 
evident,  not  merely  that  the  constitution  had  suffered 
no  loss,  but  that  the  time  was  ripe  for  that  new  ad- 
vance which  would  in  all  probability  have  occurred  if 
the  Tudor  dynasty  had  remained  in  possession  of  the 
throne,  but  which  was  undoubtedly  aided  by  the 
character  of  the  first  Stuart  kings. 

The  whole  Stuart  period  is  usually  considered  one 
constitutionally,  but  from  the  present  limited  point 
of  view  it  falls  into  two  quite  different  divisions.  The 

[333] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

first  age,  to  the  accession  of  James  II.,  not  merely 
presents  no  danger  to  the  constitution  but  is  one  of 
most  decided  constitutional  development,  not  in  the 
construction  of  machinery — except  to  a  limited  extent 
in  the  reign  of  Charles  I. — but  in  the  putting  of 
machinery  into  operation,  in  the  clarifying  of  ideas, 
and  in  a  rapidly  growing  understanding  of  the  true 
meaning  of  the  principles  already  established.  The 
peculiar  character  of  the  first  Stuart  period  is  given 
it  less  by  an  attempt  of  the  kings  to  be  rid  of  the  con- 
stitution than  by  an  attempt  of  Parliament  to  put 
the  existing  constitution  into  actual  operation  in  spite 
of  the  preference  and  determination  of  the  kings  to 
continue  the  personal  government  which  had  up  to 
that  time  been  the  rule.  It  is  not  a  period  of  the 
slightest  danger  to  the  constitution.  It  is  rather  the 
age  in  which  the  constitution  becomes  conscious  of 
itself,  if  we  may  say  so,  in  which  the  attempt  is  made 
for  the  first  time  to  operate  the  constitution  in  oppo- 
sition to  the  sovereign,  or,  with  regard  to  what 
resulted  from  it,  to  transfer  the  actual  exercise  of 
sovereignty  from  the  king  to  Parliament.  The  reign 
of  James  II.  presents  a  different  case.  His  was  an 
attempt  to  resist  the  progress  of  events,  not  by  insist- 
ing upon  doing  what  earlier  kings  had  done — it  was 
now  too  late  to  hope  for  success  in  that  way — but 
rather  by  preparing  to  undo  the  work  of  the  makers 
of  the  constitution  and  to  repeat  the  attempt  of 
Richard  II.  The  revolution  of  1688  and  that  of  1399 

[334] 


THE  END  OF  THE  PERIOD  OF  ORIGIN 

are  as  closely  parallel  as  it  is  possible  for  two  historical 
events  to  be,  and  the  constitution  was  never  in  so 
great  danger  in  the  second  as  in  the  first  period,  and 
never  in  serious  danger  in  either. 

If  by  the  critical  period  of  English  constitutional 
history  is  meant  an  age  when  the  real  character  of  the 
result  as  well  as  its  form  and  details  were  at  stake — 
when  the  course  of  constitutional  growth  might  have 
been  turned  in  a  different  direction — we  must  find  it, 
as  we  must  in  nearly  every  case  of  vigorous  growth, 
near  the  beginning.  In  this  sense  the  critical  period 
of  the  English  constitution,  the  decisive  period  which 
controlled  the  future,  was  the  thirteenth  century,  and 
after  the  Great  Charter  had  once  been  secured,  and 
after  the  eventful  and  decisive  reign  of  Henry  III. 
had  determined  what  its  future  was  to  be,  the  last 
sub-division  of  this  general  age  of  crisis  was  made  by 
the  years  of  Parliamentary  experimenting,  for  in 
them  the  result  was  still  at  stake,  the  final  set  of  the 
current  was  decided. 

To  understand  how  easily  a  different  and  far  less 
efficient  form  might  have  been  given  during  this 
period  to  the  new  institution,  or  indeed  how  little 
effort  it  would  have  required  to  have  prevented  alto- 
gether the  formation  of  a  really  effective  Parliament, 
it  is  only  necessary  to  study  the  forms  which  the  insti- 
tution assumed  during  this  transitional  period.16 

ifi  It  may  be  said,  I  think,  of  the  instances  of  the  summoning  of  the  new 
elements  to  Parliament  between  1265  and  1295  that  the  idea  of  repre- 

[335] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

Especially  instructive  are  the  occasions  when  we  find 
the  two  forms  which  were  later  most  successfully 
employed  by  the  French  kings  in  weakening  the 
Estates  General  and  reducing  them  to  the  service  of 
the  crown — the  division  of  the  national  Parliament 
into  provincial  assemblies  and  its  division  into  dis- 
tinct assemblies  of  the  different  estates.  These  forms 
occur  without  especial  comment  or  protest.  The 
danger  which  lay  in  them  was  not  evident.  Their 
competence  within  their  separate  fields  was  not  less 
than  that  of  a  full  Parliament  of  the  next  century, 
considering  the  difference  of  date.  Nothing  indicates 
that  there  would  have  been  any  difficulty  in  directing 
the  future  development  of  Parliament  along  the  line 
of  these  precedents.  Indeed  the  kings  for  some  time 
continued  to  negotiate  separately  with  some  of  the 
classes  to  avoid  the  difficulty  of  dealing  with  Parlia- 
ment and  were  induced  at  last  to  give  up  the  practice 

sentation  by  delegates  is  becoming  more  common,  perhaps  habitual,  and 
that  the  fact  that  these  representatives  are  to  take  part  in  the  decision 
of  public  questions  along  with  the  members  of  the  old  curia  is  getting 
clearer  expression.  See  for  instance  the  writs  for  the  Parliament  of 
January,  1285,  Stubbs,  8.  C.,  p.  465.  In  studying  the  development  of  the 
idea  of  representation  no  weight  should  be  allowed,  I  think,  to  the  quota- 
tion of  the  maxim  quod  omnes  tangit  ab  omnibus  approbetur  in  the 
writs  of  1295,  Stubbs,  S.  C.,  p.  485.  Some  one  who  was  writing  writs  in 
the  reign  of  Edward  had  a  love  for  proverbial  and  banal  phrases  and  a 
very  good  opinion  of  his  own  Latin  style.  See  the  quia  praevisa  jacula 
minus  laedunt  just  below  in  the  same  writ  and  the  writ  to  the  burgesses 
of  June  28,  1283,  Stubbs,  8.  C.,  p.  467.  The  maxim  quod  omnes  tangit 
is  virtually  quoted  by  Roger  of  Wendover  under  date  of  1225,  M.  Par., 

III.  91,  and  by  the  bishops  in  their  answer  to  the  legate  in  1240,  M.  Par., 

IV.  37. 

[336] 


THE  END  OF  THE  PERIOD  OF  ORIGIN 

only  by  the  most  skilful  management  of  the  House 
of  Commons  in  the  fourteenth  century.  It  is  not 
necessary  to  say,  however,  that  if  these  had  been  the 
controlling  precedents  no  Parliament  would  have 
been  formed  in  the  English  sense  and  no  constitution. 

What  saved  Parliament  and  the  constitution  in  this 
crisis  was  ignorance,  was  the  lack  of  experience.  Had 
it  been  as  possible  for  Edward  I.  to  foresee  the  future 
in  this  respect  as  it  was  for  Charles  V.  and  Charles 
VII.  of  France,  and  to  understand  the  danger  to  the 
monarchy  which  lay  in  the  growth  of  a  strong  Par- 
liament, he  could,  so  far  as  we  can  now  see,  and  he 
probably  would,  have  prevented  it.  It  was  hardly 
possible  to  do  this  after  the  close  of  his  reign;  it  was 
entirely  impossible  after  the  deposition  of  Edward  II. 

With  the  formation  of  Parliament  by  the  addition 
of  the  new  elements  to  the  curia  regis,  and  with  the 
virtual  restoration  to  Magna  Carta  of  the  original 
clause  12  of  Magna  Carta,  the  period  of  the  origin 
proper  of  the  constitution  comes  to  an  end.  It  is  the 
period  of  building  upon  the  beginning  which  had  been 
made  that  opens  at  once.  From  a  time  when  no 
beginning  of  a  constitution  is  apparent,  when  every 
circumstance  promised  the  speedy  formation  of  an 
absolute  rather  than  a  limited  monarchy,  and  when 
the  slight  tendency  earlier  manifest  in  English  feu- 
dalism to  check  a  development  of  royal  power  had 
been  so  long  without  influence  as  to  seem  about  to 
disappear,  from  such  a  time  England  had  advanced 

[337] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

through  the  three  great  crises  which  have  been 
described  to  what  is  clearly  a  constitutional  beginning, 
with  a  more  or  less  organized  opposition,  acting  upon 
clear  and  definite  principles  capable  of  wide  appli- 
cation, and  through  a  primitive  but  even  then  most 
efficient  institution  capable  also  of  rapid  and  extensive 
growth.  From  this  beginning  Parliament  made,  as 
has  been  said,  the  enormous  advance  of  the  next  cen- 
tury, until  it  became  the  guardian  of  the  fundamental 
principles  of  the  constitution.  This  it  did  by  the 
attachment  of  conditions  to  grants  of  money ;  by  cut- 
ting off  all  uncontrolled  sources  of  revenue ;  by  insist- 
ing upon  the  equal  right  of  the  House  of  Commons 
in  all  legislation ;  by  extending  parliamentary  control 
from  the  income  to  the  expenditure  of  the  state;  by 
declaring  the  king's  ministers  responsible  to  itself  as 
well  as  to  the  king;  by  extending  in  the  revolution  of 
1399  the  right  of  deposition  into  a  right  of  breaking 
the  order  of  succession;  and,  as  a  result  of  that  revo- 
lution, by  denying  the  responsibility  of  members  to 
the  king  for  their  action  in  Parliament.  A  bare 
enumeration  of  these  achievements  shows  how  very 
far  the  transformation  went  in  that  century  of  the  old 
feudal  absolutism  into  what  may  rightly  be  called  a 
constitutional  monarchy,  and  how  very  complete  must 
have  been  the  preparation  afforded  by  the  work  of 
the  thirteenth  century. 


[338] 


THE  END  OF  THE  PERIOD  OF  ORIGIN 

NOTE  A.     THE  WRIT  OF  1213 

(Page  317.) 

THE  supposed  occurrences  in  August  and  November,  1213,  which 
have  been  thought  to  foreshadow  the  introduction  of  a  repre- 
sentative element  into  the  curia  regis,  cannot,  I  think,  be  allowed 
to  have  had  any  effect  on  the  final  result.  The  writ  preserved 
to  us  by  Roger  of  Wendover,  M.  Par.,  II.  550  (Stubbs,  S.  C., 
p.  276),  directing  the  presence  of  the  reeve  and  four  men  from 
certain  vills  at  Oxford,  on  August  4,  to  determine  the  damages 
sustained  by  the  bishops,  gives  rise  to  difficulties  which  have 
occasioned  much  discussion.  There  is  no  reason,  I  think,  for 
rejecting  it  out  and  out  with  Ramsay,  Angevin  Empire,  p.  442, 
n.  7.  The  general  form  of  such  a  writ  is  certainly  followed, 
de  damnis  et  ablatis  is  technical,  and  there  is  no  reason  why 
such  an  experiment  should  not  have  been  tried.  The  only  new 
thing  about  it  would  be  the  union  of  the  juries  of  the  vills  in 
one  place  and  this  would  not  seem  a  serious  innovation.  The 
objection  to  such  a  united  meeting  is  not  institutional  but  prac- 
tical— the  difficulty  of  getting  the  men  together  from  all  Eng- 
land. The  chronicler  certainly  transformed  the  writ  (facerent) 
and  in  so  doing  very  possibly  made  unconscious  errors  but  an 
explanation  which  has  been  suggested  by  Professor  A.  B.  White 
seems  to  dispose  of  the  difficulties  simply  and  completely.  See 
A.  H.  R.,  XVII.  12-16,  October,  1911.  He  brings  into  connec- 
tion with  the  writ  the  passage  in  the  Annals  of  Waverly  under 
1208,  describing  John's  confiscation  of  the  property  of  the  church 
after  the  interdict,  which  reads:  Qui  [the  royal  commissioners] 
circueuntes  regionem  saisiaverunt  bona  clericorum  mobilia  et 
immobilia  intra  et  extra,  committentes  curam  rerum  illarum  in 
singulis  villis  vicinis  hominibus,  per  quorum  manus  clerici  per- 
ciperent  de  rebus  suis  necessaria.  Ann.  Wav.,  p.  260.  The 
explanation  then  would  be  that  the  writ  of  1213  calls  upon  those 
to  whom  the  church  lands  had  been  committed,  and  who  had 
had  charge  of  them  since  1208,  to  state  the  facts  as  to  the  bishops' 

[339] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

losses.  The  coincidence  of  the  singulis  villis,  which  would  nat- 
urally be  in  1208  as  in  1213  royal  vills,  adds  to  the  probability 
of  this  interpretation,  for  the  reference  to  the  royal  domain  vills 
in  the  writ  of  1213  has  been  the  most  serious  difficulty  in  our 
understanding  of  it.  If  there  is  an  ejection  to  this  interpretation, 
which  I  have  not  discovered,  we  must  fall  back,  I  think,  upon  the 
suggestion  offered  by  Mr.  G.  J.  Turner,  E.  H.  R.,  XXI.  297-299, 
that  the  reference  was  really  to  the  episcopal  vills.  This  inter- 
pretation is  strengthened  by  the  form  of  the  commission  issued 
on  October  19,  1234,  to  two  clerks  to  inquire  into  the  treatment 
of  the  lands  of  the  abbot  of  Peterborough  while  in  the  king's 
hands.  They  are  to  go  to  Peterborough  and  "the  sheriff  of 
Northampton  is  commanded  to  bring  before  them  four  lawful 
men  and  the  reeve  of  the  several  manors  of  the  abbot  in  his 
county  and  such  other  persons  as  are  necessary  to  make  the  said 
inquisition."  Cal.  Pat.  Rolls,  1234,  p.  78.  Vill  in  the  writ  of 
1213  should  also  be  translated  "manor."  Perhaps  with  this 
should  be  combined  the  suggestion  of  Mr.  H.  W.  C.  Davis, 
E.  H.  R.,  XX.  289-290,  making  the  action  of  the  juries  take 
place  in  the  shire  courts  and  the  ministri  report  at  St.  Albans. 
The  chronicler,  having  begun  to  change  his  writ,  as  noted  above, 
might  easily  have  been  misled  by  directions  for  the  meeting  of 
local  juries  at  St.  Albans.  Whatever  may  be  thought  about  this 
writ,  we  not  only  have  no  evidence  that  such  juries  actually 
came  together  at  St.  Albans,  but  we  do  know  that  the  damages 
were  determined  later  in  another  way.  Rymer,  I.  114;  Ann. 
Dunst.,  p.  30.  Whatever  interpretation  is  adopted,  the  whole 
proceeding  is  different  in  form  and  purpose  from  anything  con- 
nected with  the  later  origin  of  Parliament. 

The  writ  of  November  7,  1213,  Stubbs,  S.  C.,  p.  287,  direct- 
ing the  sheriff  to  cause  the  knights  of  his  county,  summoned  to 
Oxford  for  November  15,  to  come  armed,  and  the  general  body 
(corpus)  of  the  barons  unarmed,  and  to  cause  four  discreet  men 
of  his  county  to  meet  the  king  at  the  same  time  ad  loquendum 
nobiscum  de  negotiis  regni  nostri,  presents  so  many  difficulties 
of  interpretation  that  in  the  entire  absence  of  other  evidence 

[340] 


THE  END  OF  THE  PERIOD  OF  ORIGIN 

bearing  upon  the  matter  little  that  is  definite  can  be  said  of  it. 
It  is  plainly  a  writ  supplementary  to  an  earlier  one  and  adds 
to  it  two  things:  first,  that  the  knights  are  to  come  armed  and 
the  barons  unarmed,  and  second,  the  direction  as  to  the  four  men. 
Who  the  knights  are  it  is  impossible  to  say.  Naturally  we  should 
suppose  them  the  minor  tenants-in-chief,  here  summoned  in  a 
body  as  no  doubt  often  before.  But  the  number  of  minor  tenants-in- 
chief  is  too  small  to  justify  us  in  supposing  that  the  directions 
about  arms  imply,  as  would  be  the  first  inference,  an  idea  on  the 
king's  part  that  he  could  find  in  them  a  force  to  be  used  in  over- 
awing the  barons,  who  could  not  be  expected  to  obey  orders 
to  come  unarmed.  If  we  suppose  them  to  be  the  entire  servitium 
debitum  of  the  county,  then  it  seems  to  me  impossible  to  believe 
that  any  idea  was  entertained  in  1213  of  introducing  this  body 
en  masse  into  a  meeting  of  the  great  council.  It  would  be  a  less 
severe  stretch  of  possibilities  to  suppose  a  genuine  representa- 
tive idea  behind  the  directions  as  to  the  four  men,  but  that  also 
seems  to  me  impossible  at  that  date.  Quite  possible  would  be 
a  desire  for  discreet  men  from  the  counties  to  bring  up  evidence 
as  to  local  facts  of  some  kind,  as  in  1254,  or  even  as  may  have 
been  possible  in  the  preceding  August,  but  not  more  than  this, 
I  think.  The  ad  loquendum  phrase  is  all  the  evidence  we  have 
that  the  great  council  was  to  meet  or  did  meet  at  that,  date,  and 
all  together  the  information  given  us  is  too  slight  to  be  of  any 
value.  All  that  can  be  said  is  that  the  idea  occurred  to  some- 
body in  1213  that  discreet  men  from  the  counties  could  be  asked 
to  be  present  at  the  same  time  and  place  as  a  meeting  of  the 
great  council.  If  all  that  has  ever  been  made  of  the  case  could 
be  affirmed  with  confidence,  we  should  still  have  to  say  that  it 
remains  an  isolated  and  premature  instance,  without  influence 
upon  subsequent  events.  It  would  be  most  surprising  if  after 
forty  years  it  should  have  been  remembered  by  any  one  or  have 
served  as  a  precedent  in  any  sense.  Nor  is  there  any  similarity 
between  the  action  it  provided  for  and  that  called  for  by  the 
writ  of  1254. 


[341] 


CHAPTER  VIII 
MAGNA  CARTA  AND  THE  RESPONSIBLE  MINISTRY* 

As  was  naturally  to  be  expected,  the  conclusion 
reached  in  the  first  edition  of  this  book  has  not  found 
universal  acceptance.  I  have  maintained  that  what 
is  distinctive  in  the  English  Constitution,  what  has 
given  it  its  unique  place  in  the  history  of  the  world, 
that  is,  the  principle  and  the  constitutional  machinery 
of  a  limited  monarchy,  was  derived  directly  from  the 
principles  and  practices  introduced  by  Magna  Carta, 
and  that  therefore  the  origin  of  the  English  Consti- 
tution is  to  be  found  in  Magna  Carta.  In  dissent  it 
has  been  declared  that  the  English  Constitution  con- 
tains far  more  than  the  machinery  of  a  limited  mon- 

iThis  chapter  was  first  published  as  an  article  in  the  American  His- 
torical Review,  July,  1915,  voL  XX.,  744-760,  as  a  contribution  of  the 
seventh  centennial  of  Magna  Carta.  It  is  republished  by  permission. 
In  its  preparation  I  made  a  special  use  of  the  following  books  and 
articles  and  would  here  acknowledge  my  indebtedness  to  them:  Sir 
William  R.  Anson,  The  Law  and  Custom  of  the  Constitution,  I.  39-43 
(1909),  vol.  II.,  chapter  II.  (1907);  H.  B.  Learned,  The  President's 
Cabinet  (1912),  chapters  I.,  II.,  III.;  Sir  William  R.  Anson,  English 
Historical  Review,  XXIX.  56-78,  325-327;  E.  I.  Carlyle,  ibid.,  XXVII. 
251-273;  H.  W.  V.  Temperley,  ibid.,  XXVII.  682-699;  XXVIII.  127-131; 
E.  R.  Turner,  American  Historical  Review,  XVIII.  751-768;  XIX.  27-43, 
772-794.  The  articles  of  Carlyle,  Temperley,  and  Turner  are  concerned 
mainly  with  external  forms,  or  the  development  of  the  cabinet.  Sir 
William  Anson  considers  more  fully  the  idea  of  responsibility  and  Mr. 
Learned's  book  is  valuable  in  the  same  direction. 

[342] 


MAGNA  CARTA  AND  RESPONSIBLE  MINISTRY 

archy.  As  I  have  anticipated  this  criticism  in  Chap- 
ter I.,  above,  and  explained  with  reference  to  it  the 
sense  in  which  I  use  the  term  constitution,  I  do  not 
consider  that  the  objection,  put  in  this  form,  needs 
further  discussion.  It  has  been  put  in  more  specific 
form,  however,  by  Dr.  McKechnie  in  the  second  edi- 
tion of  his  Magna  Carta.  He  implies,  justly  I  think, 
that  I  did  not  show  the  connection  with  the  develop- 
ment begun  by  Magna  Carta  of  one  of  the  most  im- 
portant features  of  the  present  Constitution,  the 
responsible  ministry.  Dr.  McKechnie  says: 

The  main  line  by  which  that  monarchy  has  progressed  from 
medieval  to  modern  ideals  has  not  been  by  the  method,  unsuc- 
cessfully attempted  in  1215,  1244,  1258,  1265  and  1311  (to 
name  only  the  best-known  instances),  of  subjecting  the  King 
to  the  dictation  of  a  Committee  of  his  adversaries;  but  rather 
the  method  of  using  the  counsellors  of  his  own  appointment  to 
curb  his  own  caprice,  while  making  it  progressively  difficult  for 
him  to  appoint  any  minister  of  whom  the  national  council  did 
not  approve.2 

The  same  point  has  been  put  in  another  way  in  a  pri- 
vate letter  which  I  have  received  from  a  professor 
of  history  in  one  of  our  principal  universities.  He 
says: 

The  principle  of  Magna  Carta  that  the  King  personally  is 
subject  to  the  law  and  can  be  coerced  if  he  breaks  it  is  not  the 
principle  of  the  constitution  to-day.  Just  when  and  how  was 
the  modern  principle  that  the  King  can  do  no  wrong,  coupled 
with  the  responsibility  of  his  ministers  to  the  law,  substituted 
for  it  ? 
2W.  S.  McKechnie,  Magna  Carta  (1914),  p.  127. 

[343] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

My  critics  plainly  assume  that  the  principle  of  min- 
isterial responsibility  originated  outside  the  line  of 
results  derivable  from  Magna  Carta,  and  one  of  them 
believes  that  it  has  taken  the  place  in  the  present  Con- 
stitution of  the  principle  that  the  king  is  subject  to 
the  law.  The  question  thus  raised  is  a  most  important 
one.  Ministerial  responsibility  has  played  so  great  a 
part  in  the  practical  operation  of  the  English  Consti- 
tution for  more  than  a  century ;  it  seems  to  the  student 
of  the  nineteenth  century  so  clearly  of  the  very  nature 
of  the  Constitution  and  even  appears  to  be  its  one 
essential  feature;  it  has  had  so  much  to  do  with 
making  possible  the  adoption  of  the  Constitution 
more  or  less  completely  by  all  kinds  of  monarchies, 
from  those  that  are  virtually  democratic  republics  to 
those  that  are  scarcely  modified  absolutisms,  that  cer- 
tainly no  understanding  of  English  constitutional  his- 
tory is  complete  until  the  source  of  that  principle  and 
the  way  in  which  it  entered  into  the  final  result  are 
clear. 

There  can  be  no  doubt  that  an  idea  of  ministerial 
responsibility  is  to  be  found  in  the  Middle  Ages  and 
that  it  was  to  a  considerable  extent  realized  in  fact. 
In  the  passage  from  which  I  have  quoted,  Dr.  Mc- 
Kechnie  enumerates  by  date  the  first  clumsy  experi- 
ments which  were  made  in  the  effort  to  give  institu- 
tional expression  to  the  principle  that  the  king  may 
be  compelled  to  keep  the  law.  They  were  blind  grop- 
ings  after  the  idea  of  ministerial  responsibility,  so 

[344] 


MAGNA  CARTA  AND  RESPONSIBLE  MINISTRY 

vaguely  conceived  that  no  one  saw  a  better  way  than 
to  remove  entirely  the  ministers  of  the  king's  appoint- 
ment, or  even  to  suspend  the  king's  authority  itself, 
and  substitute  for  the  time  being  ministers,  or  a  kind 
of  commission,  directly  responsible  to  the  great  coun- 
cil. Dr.  McKechnie  has  seen  clearly  enough  that 
modern  ministerial  responsibility  did  not  grow  out  of 
these  first  instances,  but  they  are  by  no  means  the 
only  efforts  during  the  Middle  Ages  to  find  some 
pacific,  non-revolutionary  method  of  enforcing  royal 
respect  for  the  law.  The  rapid  growth  of  parliamen- 
tary power  between  1310  and  1360,  for  only  the 
faintest  beginning  had  been  made  by  1310,  intro- 
duced a  new  element  into  the  situation.  Not  merely 
had  Parliament  in  the  interval  greatly  enlarged  the 
body  of  law  which  the  king  was  required  to  observe,3 
but  it  had  so  perfected  its  own  organization  and  won 
for  itself  so  clearly  a  definite  place  in  the  Constitu- 
tion, that  it  was  prepared  to  take  charge  with  great 
efficiency  of  the  enforcement  of  the  king's  obligations, 
in  place  of  the  somewhat  unorganized  and  inconsist- 
ent baronial  opposition.4  To  my  mind  it  is  indis- 

3  The  body  of  law  to  which  the  king  was  held  subject  had  undoubtedly 
been  much  changed  by  the  decline  of  feudalism  and  much  enlarged  by 
the  development  of  national  life,  and  especially  by  the  principles  referred 
to  above,  established  in  the  growth  of  Parliament's  power,  but  the 
continued  influence  of  the  fundamental  principle  of  Magna  Carta  was 
assured  by  its  simplicity  and  its  adaptability  to  the  changing  conditions 
of  social  advance.  See  above,  pp.  157,  169,  note. 

•4  See  above,  pp.  157-167.  With  this  compare  Dr.  Gaillard  Lapsley  in  the 
Eng.  Hist.  Rev.,  XXVIII.  124  (1913),  in  a  "note"  on  the  "Commons 

[345] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

pensable  to  any  understanding  of  the  formation  of 
the  English  Constitution  to  see  that  although  the 
development  of  Parliament  down  to  this  point  was 
independent  of  the  line  of  development  begun  by 
Magna  Carta,  what  took  place  shortly  after  the 
middle  of  the  fourteenth  century  was  the  assumption 
by  Parliament  of  the  supervision  of  that  line  of  de- 
velopment.5 What  Parliament  did  in  its  first  efforts 
to  control  the  ministers  of  Edward  III.  was  not  some- 
thing new  in  principle,  nor  a  change  of  purpose,  but 
it  was  to  employ  a  new  method  of  putting  the  old 
principle  into  operation.  That  a  great  advance  was 
made  at  this  point  is  beyond  doubt,  but  the  advance 
did  not  consist  in  the  introduction  of  any  new  prin- 
ciple, nor  indeed  in  any  clearer  perception  or  better 
formulation  of  the  old,  but  in  the  better  method  which 
came  into  use  through  the  higher  organization  of  the 

and  the  Statute  of  York."  Dr.  Lapsley,  I  think,  dates  the  beginning  of 
parliamentary  supervision  somewhat  too  early.  It  seems  probable  that 
the  power  of  Parliament  was  too  undeveloped  before  the  last  years  of 
Edward  III.  to  permit  of  any  continuous  guardianship  of  constitutional 
principles.  The  date  is  more  clearly  marked  by  the  beginning  of 
impeachment  than  by  any  other  single  fact. 

5  Parliament  laid  the  foundation  for  this  assumption  early  in  the  four- 
teenth century  in  its  efforts  to  obtain  financial  control,  and  it  is  surely 
not  necessary  to  emphasize  the  important  place  given  to  this  control, 
so  far  as  recognized  by  the  law  of  that  day,  in  1215  and  in  the  actual 
practice  of  the  thirteenth  century.  Nor  is  it  necessary  to  point  out 
that  this  control  was  definitely  restored  to  the  formal  tradition  of  Magna 
Carta  in  1297.  It  should,  however,  not  be  overlooked  that  upon  this 
restoration  was  definitely  based  the  first  slight  step  in  parliamentary 
development  in  the  grants  upon  conditions  at  the  beginning  of  the  reign 
of  Edward  II.,  and  that  upon  this  last  was  directly  founded  the  whole 
construction  of  parliamentary  power  in  the  reign  of  Edward  III. 

[346] 


MAGNA  CARTA  AND  RESPONSIBLE  MINISTRY 

body  which  assumed  charge  and  the  possibility  of  a 
more  continuous  and  consistent  growth. 

The  method  employed  from  this  time  on  in  the 
coercion  of  the  king  was  no  longer  to  appoint  over 
him  a  "committee  of  his,  adversaries,"  but  to  hold  the 
ministers  of  the  king's  own  appointment  responsible 
to  Parliament  for  what  they  did  in  carrying  out  his 
policy,  or,  if  in  some  cases  Parliament  appointed,  it 
was  not  with  any  special  purpose  of  selecting  the 
leaders  of  an  active  opposition.  The  new  method  is 
to  be  seen  in  the  history  of  the  treasurers  during  the 
last  years  of  Edward  III.'s  reign,  in  the  control  of 
the  councils  of  Richard  II.'s  minority  and  of  the  three 
Lancastrian  reigns,  and  most  perfectly  of  all  in  the 
process  of  impeachment.  But  however  modern  the 
description  may  sound  which  may  be  given  of  this  new 
method,  it  is  really  distinguished  from  the  modern  and 
identified  with  the  medieval  by  two  most  essential 
characteristics.  In  the  first  place  it  is  the  king  who 
is  coerced  and  not  the  ministers.  The  real  executive 
is  the  king  and  the  ministers  are  punished  as  a  means 
of  coercing  him.  Parliament  has  as  yet  no  conception 
of  itself  as  the  final  authority  in  determining  the 
policy  of  the  government,  or  of  the  ministers  as  carry- 
ing out  its  policy  rather  than  the  king's.  In  the 
second  place,  Parliament  holds  the  ministers  to  a 
direct  responsibility  to  itself.  It  compels  them  to 
report  to  itself,  it  brings  criminal  accusations  against 
them,  and  punishes  them  with  death.  The  modern 

[347] 


UK1GIN  OF  THE  ENGLISH  CONSTITUTION 

indirect  responsibility  is  not  thought  of.  These  two 
differences  reveal  an  impassable  gulf  between  the 
modern  and  the  medieval  forms  of  ministerial  respon- 
sibility. The  first  indicates  a  vitally  important  differ- 
ence of  purpose  and  interpretation,  and  the  second 
an  institutional  difference,  in  the  mechanical  opera- 
tion of  the  principle,  which  alone  would  make  its  deri- 
vation from  the  earlier  impossible.6  Modern  minis- 
terial responsibility  has  nothing  in  common  with 
medieval  beyond  the  name  and  the  mere  idea.  Un- 
doubtedly the  abstract  idea  is  the  same,  but  consti- 
tutional history  does  not  concern  itself  with  abstract 
ideas,  except  to  note  them  as  sources  of  suggestion 
and  impulse.7  It  deals  with  the  institutional  forms  in 

6  If,  however,  anyone  is  convinced  that  the  modern  is  derived  from  the 
medieval  form,  it  should  not  be  difficult  to  see  its  direct  connection  with 
Magna  Carta.    As  I  have  said  above,  the  methods  of  coercion  and  control 
adopted  in  the  last  half  of  the  fourteenth  century  and  continued  in  the 
fifteenth,  rest  back  for  their  foundation  upon  the  principles  brought  into 
the  Constitution  in  1215.    They  are  merely  improved  methods  of  doing 
the  same  thing  that  was  attempted  at  that  date  and  in  1258  and  1310. 
This  is  true  even  of  impeachment,  the  medieval  expedient  which  passes 
on  into  modern  times,  for  its  object  was  not  to  transfer  the  initiative 
and  control  of  government  policy  from  the  king  to  his  ministers;  that 
was  an  idea  still  in  the  far  distant  future  and  impossible  to  the  four- 
teenth century.     It  was  merely  a  new  and  improved  method  of  coercing 
the  king.     If  the  modern  were  derived  from  the  medieval,  its  origin 
would  be  far  more  conscious  and  deliberate  than  it  was,  and  we  should 
be  able  to  discover  the  stages  of  change.     It  may  be  added  that  in  the 
fourteenth  century  also  the  use  of  the  counsellors  of  the  king's  own 
appointment  to  curb  his  caprice,  and  the  making  of  it  difficult  for  him 
to  appoint  any  minister  of  whom  the  national  council  did  not  approve 
were  still  in  the  distant  future. 

7  The  influence  upon  constitutional  history  of  John  Locke's  attempt  to 

[348] 


MAGNA  CARTA  AND  RESPONSIBLE  MINISTRY 

which  ideas  are  expressed  and  the  way  in  which  these 
institutions  operate  in  the  daily  carrying  on  of  gov- 
ernment. In  these  particulars,  in  the  matter  of  min- 
isterial responsibility,  a  great  change  occurred  some- 
where between  the  fifteenth  and  the  nineteenth 
centuries.8 

Not  merely  in  institutional  form  but  in  practical 
result,  it  is  difficult  to  overstate  the  importance  of  this 
difference.  Had  the  course  of  English  history  led  to 
a  constitution  in  which  in  form  and  law  the  ministry 
was  directly  responsible  to  Parliament  instead  of  to 
the  king,  not  merely  would  it  have  been  immensely 
more  difficult  to  reconcile  the  sovereign  to  a  loss  of 
the  substance  of  power,  but  the  adoption  of  the  Con- 
stitution by  other  and  reluctant  monarchies  would 
have  been  made  a  practical  impossibility.  The  com- 
promise feature  of  the  present  Constitution,  by  which 
in  theory  and  in  form  the  ministry,  though  supreme, 
seems  to  be  the  creature  of  the  king  and  responsible  to 
him,  would  have  had  no  existence.  The  choice  which 

find  a  philosophical  justification  for  the  Revolution  of  1688  in  his 
second  Treatise  of  Government  was  great  in  both  France  and  America, 
but  this  fact  does  not  make  Locke's  Treatise  in  itself  considered  a  part 
of  constitutional  history. 

8  What  binds  together  in  this  respect  the  development  of  the  English 
Constitution  from  its  beginning  in  1215  to  the  latest  step  which  has 
been  taken  in  it,  is  the  effort  to  find  some  means  of  holding  the  king 
responsible  without  the  danger  of  civil  war  and  revolution.  It  is  really 
this  common  characteristic,  so  far  as  we  are  not  deceived  by  the  mere 
name,  which  tempts  us  to  identify  medieval  with  modern  ministerial 
responsibility,  not  the  existence  of  a  true  institutional  identity,  for  that 
is  usually  assumed  without  investigation. 

[349] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

without  this  compromise  a  successful  revolution  might 
offer  to  a  sovereign  between  a  formal  direct  respon- 
sibility of  all  the  organs  of  actual  government  to  the 
legislative  assembly  on  one  side,  and  an  out-and-out 
republic  on  the  other,  would  have  been  an  even  choice 
with  no  particular  attractiveness  or  significance  of  one 
side  above  the  other.  The  world  influence  of  the 
English  Constitution  depended  for  its  existence  upon 
the  fact  that  Parliament  came  to  control  the  actual 
government  indirectly,  not  directly;  that  an  actual 
republic  was  concealed  under  all  the  ceremonial  and 
theoretical  forms  of  a  continued  monarchy.9 

To  show  how  the  newer  form  of  ministerial  respon- 
sibility entered  the  Constitution,  a  brief  outline  of  the 
middle  period  of  its  history  is  necessary,  and  this  will 
also  show,  as  I  believe,  that  the  modern  principle  is 
historically  independent  of  the  medieval  experiments 

91  have  said  much  on  ministerial  responsibility  as  aiding  in  the  spread 
of  the  English  Constitution  throughout  the  world  and  accounting  for 
its  influence.  I  have  no  wish  to  modify  these  statements,  but  it  must 
be  noticed  that  they  apply  rather  to  the  influence  of  the  Constitution 
in  the  nineteenth  century  than  earlier.  The  practical  experience  of  the 
Continent,  especially  of  France,  with  absolutism,  and  the  effort  which 
was  made  by  the  French  philosophers  to  attack  the  theoretical  founda- 
tion of  an  absolute  monarchy,  aided  by  the  results  reached  in  England, 
especially  by  Locke,  in  attempting  to  justify  philosophically  the  revolu- 
tion of  the  seventeenth  century,  gave  to  the  English  Constitution  an 
influence  in  the  eighteenth  century  which  is  derived  from  the  general 
fact  of  limited  monarchy,  with  comparatively  little  reference  to  the 
special  institutional  forms  in  which  the  fact  was  expressed.  This  is  to 
be  seen  in  the  purely  theoretical  way  in  which,  both  in  France  and 
America,  institutional  details  were  discussed,  and  even  experimented 
with,  with  no  reference  to  the  experience  of  England. 

[350] 


MAGNA  CARTA  AND  RESPONSIBLE  MINISTRY 

and  what  its  organic  relation  with  the  fundamental 
principle  of  Magna  Carta  is. 

If  we  go  back  to  the  close  of  the  Middle  Ages,  or 
better  to  the  beginning  of  the  seventeenth  century,  for 
without  the  experience  of  the  sixteenth  century  the 
accumulation  of  precedent  essential  in  the  final  result 
was  not  complete,  we  shall  find,  as  is  well  known,  an 
impossible  constitutional  situation.  At  the  accession 
of  James  I.,  there  was  upon  one  side  a  great  body  of 
history  and  precedent  in  support  of  the  king's  claim 
to  govern  by  his  own  will.10  At  the  same  date,  there 
was  upon  the  other  side  a  great  body  of  history  and 
precedent  in  support  of  Parliament's  claim  that  the 
king  was  bound  to  regard  a  certain  body  of  law  and 
custom  in  his  action.  This  situation  may  be  described 
in  other  terms  which  bring  out  more  clearly  its  rela- 
tion to  our  theme.  England  of  the  twelfth  century 

10  In  addition  there  had  appeared  in  the  sixteenth  century  an  important 
development  of  theory  in  support  of  such  a  claim  in  the  idea  of  the 
divine  right  of  the  king.  Theoretical  support  for  Parliament's  position 
was  much  less  clearly  developed  at  the  beginning  of  the  seventeenth 
century  than  for  the  king's,  and  a  most  interesting  part  of  the  history 
of  that  century  is  the  gradual  formation  of  this  theory.  This  comes, 
I  think,  to  its  first  full  and  clear  expression  in  the  resolutions  of  Jan- 
uary 4,  1649,  justifying  the  action  of  the  House  of  Commons  in  pro- 
ceeding single-handed  with  the  trial  of  the  king:  "That  the  people  are, 
under  God,  the  original  of  all  just  power;  that  the  Commons  of  Eng- 
land, in  Parliament  assembled,  being  chosen  by  and  representing  the 
people,  have  the  supreme  power  in  this  nation;  that  whatsoever  is 
enacted  or  declared  for  law  by  the  Commons  in  Parliament  assembled, 
hath  the  force  of  law,  and  all  the  people  of  this  nation  are  concluded 
thereby,  although  the  consent  and  concurrence  of  King  or  House  of 
Peers  be  not  had  thereunto."  Gardiner,  Great  Civil  War,  IV.  290. 

[351] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

was  an  absolute  monarchy  with  no  constitutional  limi- 
tation except  that  vaguely  implied  in  the  fundamental 
contract  of  feudalism,  and  no  machinery  for  the  ex- 
pression of  a  will  opposed  to  that  of  the  king  except 
the  primitive  and  ineffective  curia  regis.  The  natural 
development  of  this  absolute  monarchy  into  a  final 
Constitution  was  broken  into  by  Magna  Carta,  which 
transformed  the  feudal  interpretation  of  the  contract 
relationship  between  the  king  and  his  barons  into  a 
general  principle  (the  king  may  be  compelled  to  keep 
the  law)  capable  of  far  wider  application  and  of  ex- 
pansion without  change  of  substance  to  fit  the  needs 
of  the  expanding  national  life.  From  the  date  of 
Magna  Carta  on  to  the  beginning  of  the  seventeenth 
century,  the  two  currents  of  constitutional  develop- 
ment thus  begun  appear  alternately  upon  the  surface. 
The  principles  of  a  limited  monarchy  are  enlarging 
and  clarifying  themselves  until  they  are  virtually 
complete  in  the  fifteenth  century,  and  the  absolute 
monarchy  is  forced  constantly  into  narrower  channels 
by  the  concessions  it  must  every  now  and  then  make 
to  the  increased  weight  of  the  opposing  current. 
Down  to  the  death  of  Elizabeth,  however,  much  the 
larger  portion  of  the  past  had  been  occupied  by  prac- 
tical absolutism,  while,  except  in  the  granting  of 
taxes  and  in  legislation,  the  limited  monarchy  existed 
rather  in  undeveloped  principles.  But  these  prin- 
ciples were  so  truly  the  result  of  experiment  and  ex- 
perience that  an  imposing  body  of  precedent  could 

[352] 


MAGNA'CARTA  AND  RESPONSIBLE  MINISTRY 

also  be  cited  to  justify  their  expansion  in  new  appli- 
cations.11 

These  two  contradictory  interpretations  of  the  Con- 
stitution stood  over  against  one  another  in  1603.  The 
issue  between  them  had  never  been  drawn.  Since  the 
working  out  of  the  limited  monarchy  and  the  estab- 
lishment of  its  principles  in  1399,12  the  two  had  never 
entered  the  field  together.  Each  in  turn  had  had 
possession  for  a  long  period,  and  government  had 
been  carried  on  according  to  it  with  no  serious  inter- 

11  See  an  interesting  instance  of  the  citation  of  precedents  on  this  side 
quoted  by  TasweU-I>angmead,  English  Constitutional  History   (seventh 
ed.,  1911),  p.  432,  and  there  attributed  to  Sir  Robert  Cotton:  "\Ve  do 
not  desire,  as  5  Henry  IV.,  or  29  Henry  VI.,  the  removing  from  about 
the  King  any  evil  councillors.    We  do  not  request  a  choice  by  name,  as 
14  Edward  II.,  3,  5,  11  Richard  II.,  8  Henry  IV.,  or  31  Henry  VI.;  nor 
to  swear  them  in  Parliament,  as  35  Edward  I.,  9  Edward  II.,  or  5 
Richard  II.;  or  to  line  them  out  their  directions  of  rule,  as  43  Henry 
III.  and  8  Henry  VI.;  or  desire  that  which  Henry  III.  did  promise  in 
his  42nd  year,  se  acta  omnia  per  assensum  magnatum  de  concilia  suo 
electorum,  et  sine  eorum  assensu  nihil."     On   the  attribution  of  this 
speech  and  the  question  of  its  delivery  see  S.  R.  Gardiner,  Debates  in 
the  House  of  Commons  in  1625  (Camden  Society,  1873),  pp.  xx.-xxiii., 
and  History   of  England,  V.   425,  note    (ten-voL   ed.,   1883),   and   cf. 
Forster,  Sir  John  Eliot   (1872),  pp.  243-250.     If  it  be  true  that  "this 
speech  was  not  spoken  but  intended,"  the  sentence  is  still  a  good  exam- 
ple of  the  way  in  which  precedents  were  used  on  the  parliamentary  side. 

12  It  is  no  exaggeration  to  say   that  after  the  Revolution  of  1399  the 
English  Constitution  was   in   existence  so   far   as   all  its   fundamental 
principles  are  concerned.     Much  had  still  to  be  done  in  finding  out  all 
that  those  principles  implied  and  this  was  the  work  of  the  seventeenth 
century;  much  had  still  to  be  done  in  applying  them  consistently  to 
the  details  of  government,  especially  in  the  control  of  finance,  in  the 
independence  of  the  judiciary,  and  in  the  directing  of  foreign  policy; 
and  much  had  still  to  be  done  in  devising  machinery  for  their  practical 
operation,  and  of  this  the  chief  instance  is  the  cabinet  with  ministerial 
responsibility. 

[353] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

ruption  from  the  other.  The  Lancastrian  period, 
"startlingly  and  prematurely  modern,"  is  in  funda- 
mental principles,  though  these  had  not  been  worked 
out  in  all  details,  an  age  of  constitutional  monarchy. 
The  Yorkist  and  Tudor  periods  form  an  age  of  prac- 
tical absolutism,  though  an  absolutism  which  for  its 
own  convenience  made  use  of  some  of  the  machinery 
of  a  constitutional  monarchy  and  in  so  doing  strength- 
ened and  confirmed  it. 

With  the  accession  of  James  I.  we  enter  upon  a 
period  of  constitutional  growth  new  in  character  to 
all  English  history,  if  we  except  the  brief  struggle 
under  Richard  II.  On  his  side  the  king  was  deter- 
mined that  the  Constitution  should  be  operated  ac- 
cording to  his  interpretation  of  it  and  on  its  side  Par- 
liament was  equally  determined  that  its  interpretation 
should  prevail.  From  such  an  issue  only  two  results 
were  possible.  It  might  be  that  one  interpretation 
should  prevail  to  the  exclusion  of  the  other,  or  it 
might  be  that  a  workable  compromise  should  be  found 
between  them.  It  is  not  necessary  for  our  purpose  to 
follow  the  struggle  between  these  conflicting  ideals ;  it 
is  necessary  to  see  that  the  result  was  a  workable  com- 
promise between  them  of  which  the  essential  feature 
was  destined  in  the  end  to  be  the  modern  responsible 
ministry. 

Let  us  state  the  result  with  reference  to  1660  and 
following  years,  rather  than  with  reference  to  the 

[354] 


MAGNA  CARTA  AND  RESPONSIBLE  MINISTRY 

past.  The  struggle  with  Charles  I.  established  finally 
and  forever  the  principle  that  actual  sovereignty,  the 
right  and  power  of  ultimate  decision,  was  vested  in 
Parliament  as  representing  the  nation.  How  com- 
pletely this  fundamental  question  had  been  decided 
in  Parliament's  favor  is  revealed  by  the  unanimity, 
almost  without  exception,  with  which  the  nation 
rallied  to  the  support  of  that  decision  when  the  final 
test  came  in  1688.  But  although  this  was  the  result 
established  in  reality,  it  was  not  the  result  established 
in  form.  Parliament  was  not  able,  or  did  not  wish,  to 
render  permanent  all  that  the  Puritan  party  had  ac- 
complished, or  felt  itself  obliged  to  attempt,  in  the 
change  of  government  forms.  The  last  period  of  the 
Protectorate  saw  a  strong  reaction  in  favor  of  the 
monarchy  as  the  historical  and  natural  government 
of  the  state,  and  the  result  was  the  restoration  of  the 
Stuarts  without  constitutional  guarantees.13  In  form 
such  a  settlement  left  the  issue  between  the  two  con- 
flicting constitutional  interpretations  of  1603  unde- 
cided. In  reality  it  had  been  decided  in  favor  of  the 
parliamentary  interpretation,  and  Charles  II.  was 

13  This  is  of  course  the  great  difference  between  the  settlement  of  1660 
and  that  of  1668-1669.  The  experience  of  the  intervening  years  con- 
vinced the  nation  that  the  king  must  be  far  more  definitely  and  specifi- 
cally bound  than  ever  before  to  a  faithful  observance  of  the  funda- 
mental public  law  as  it  then  stood.  The  guarantees  of  1688  included, 
however,  no  pledge  to  any  form  of  constitutional  machinery  by  which 
the  sovereignty  of  Parliament,  its  right  of  ultimate  decision,  was  to  be 
practically  exercised. 

[355] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

perhaps  even  more  conscious  of  this  fact  than  was 
Parliament  itself.14 

That  the  settlement  of  1660  was  a  compromise 
needs  hardly  to  be  proved.  That  it  was  unexpressed 
and  unnoticed,  made  not  by  negotiation  but  by  the 
force  of  events,  does  not  make  it  less  truly  a  compro- 
mise. On  one  side  the  form  was  surrendered  but  what 
proved  in  the  end  to  be  the  reality  retained;  on  the 
other  the  reality  was  given  up  but  the  surrender  was 
disguised  under  the  appearance  of  power  and,  more 
than  that,  for  a  long  time  under  the  actual  exercise  of 
very  substantial  powers  and  the  permanent  posses- 
sion of  important  rights  and  influence.  It  was  more 
than  a  hundred  years  before  all  that  the  compromise 
implied  was  clearly  recognized  and  the  balance  estab- 
lished at  its  present  level.  But  the  compromise  was 
really  made  at  the  Restoration,  though  it  was  after- 
wards so  seriously  attacked  by  James  II.  that  it 
needed  to  be  reaffirmed  in  more  definite  form  in  1689. 

Constitutionally  the  result  was  something  new  to 
all  the  experience  of  history :  in  form  sovereignty  was 
vested  in  the  king,  in  reality  it  was  vested  in  Parlia- 

w  The  form  in  which 'the  compromise  is  stated  by  the  modern  consti- 
tutional lawyer  (sovereignty  resides  in  the  king  in  his  Parliament)  is 
exceedingly  interesting.  One  is  instantly  reminded  by  it  of  the  declara- 
tion of  the  Long  Parliament  that  "the  King's  supreme  and  royal 
pleasure  is  exercised  and  declared  in  this  High  Court  of  law  and 
council,  after  a  more  eminent  and  obligatory  manner  than  it  can  be 
by  personal  act  or  resolution  of  his  own"  (Gardiner,  Documents,  p. 
257).  But  as  a  formulation  of  the  compromise  of  1660,  the  phrase  is 
as  correct  as  it  is  interesting. 

[356] 


MAGNA  CARTA  AND  RESPONSIBLE  MINISTRY 

ment,  and  the  problem  of  carrying  out  such  a  settle^ 
ment  in  practical  government,  though  no  one  was  con- 
scious of  it  at  the  time,  was  a  most  serious  one. 
Naturally,  as  a  new  thing  in  the  world,  no  machinery 
existed  by  which  sovereignty  could  be  exercised  in 
practice  by  a  representative  body  while  in  form  it  re- 
mained the  prerogative  of  the  individual  monarch.15 
By  the  mercy  of  Providence  Charles  II.  possessed, 
probably  by  inheritance  from  his  mother's  house,  a 
degree  of  tact  and  political  insight  which  makes  him 
an  exceptional  Stuart.  As  a  consequence  the  funda- 
mental contradiction  was  never  drawn  out  into  a 
square  issue  in  his  reign.  When  a  Parliament, 

is  The  want  of  any  machinery  for  carrying  out  in  the  practical  working 
of  government  the  compromise  between  king  and  Parliament  and  the 
difficulty  of  inventing  satisfactory  forms  are  clearly  shown  in  the 
experimenting  which  went  on  in  the  reign  of  Charles  II.  as  described 
in  the  books  and  articles  referred  to  in  note  1.  Particularly  interesting 
are  some  of  the  expedients  adopted  from  their  similarity  to  methods 
employed  in  Washington  during  the  past  thirty  years  in  efforts  to 
bring  the  influence  of  the  executive  to  bear  on  legislation.  See  espe- 
cially the  passage  quoted  by  Carlyle,  Eng.  Hist.  Rev.,  XXVII.  260, 
from  the  Continuation  of  the  Life  of  Clarendon,  §395:  "These  ministers 
[Clarendon  and  Southampton]  'had  every  day  conference  with  some 
select  persons  of  the  house  of  commons,  who  had  always  served  the 
king,  and  upon  that  account  had  great  interest  in  that  assembly,  and 
in  regard  of  the  experience  they  had  and  their  good  parts  were  heark- 
ened to  with  reverence.  And  with  those  they  consulted  in  what  method 
to  proceed  in  disposing  the  house,  sometimes  to  propose,  sometimes  to 
consent  to  what  should  be  most  necessary  to  the  public;  and  by  them 
to  assign  parts  to  other  men,  whom  they  found  disposed  and  willing  to 
concur  in  what  was  to  be  desired:  and  all  this  without  any  noise,  or 
bringing  many  together  to  design,  which  ever  was  and  ever  will  be 
ingrateful  to  parliaments,  and,  however  it  may  succeed  for  a  little  time, 
will  in  the  end  be  attended  with  prejudice.' " 

[357] 


usually  subservient,  reached  a  point  beyond  which  it 
would  not  go,  as  in  the  case  of  the  Declaration  of  In- 
dulgence, the  king  yielded,  and  in  spite  of  all  the  prac- 
tical control  of  government  which  he  succeeded  in 
gaining,  the  power  of  ultimate  decision  remained  with 
Parliament.  He  was  forced  to  the  same  conclusion 
to  which  his  grandfather  and  father  had  been  forced, 
that,  if  he  wished  to  govern  by  his  own  will,  he  must 
govern  without  a  Parliament.  To  the  end  of  the  reign 
of  Charles  II.  there  was  no  development  of  new  ma- 
chinery by  which  the  compromise  as  to  sovereignty 
could  be  carried  into  practical  operation.  As  a  matter 
of  fact  the  compromise  worked  in  practice  imper- 
fectly and  rather  because  of  the  caution  and  restraint 
of  Ihe  king  than  because  it  was  clearly  understood  or 
institutionally  expressed.  The  king  chose  his  own  min- 
isters and  controlled  their  policy  and  did  not  concern 
himself  with  Parliament's  approval  of  them  nor  con- 
sistently with  Parliament's  approval  of  his  policy,  and 
he  was  still  the  real  executive.  On  its  side  Parliament 
knew  no  way  of  exercising  its  power  of  final  decision, 
except  by  making  a  square  issue  with  the  king,  nor 
of  holding  the  king's  servant  responsible  except  by 
asserting  a  direct  responsibility  enforced  by  the  old 
practice  of  impeachment. 

In  the  next  reign  the  king  proceeded  so  rapidly 
and  with  so  little  judgment  to  re-establish  a  personal 
government  that  the  old  issue  was  speedily  drawn 
again  and  as  sharply  as  in  1642.  Only  one  result  was 

[358] 


MAGNA  CARTA  AND  RESPONSIBLE  MINISTRY 

possible,  for  practically  the  whole  nation  was  deter- 
mined to  maintain  the  settlement  of  1660  so  far  as 
that  was  a  settlement  of  the  fundamental  question  of 
the  supremacy  of  Parliament.  Had  constitutional 
machinery  been  devised  during  the  reign  of  Charles 
II.  for  exercising  that  supremacy  in  practice,  it  would 
undoubtedly  have  been  included  in  the  settlement  of 
1689.  But  it  had  not  been,  and  indeed  in  1689  it  was 
only  the  fundamental  principle  of  parliamentary  su- 
premacy that  was  in  any  sense  apprehended.  Neither 
the  range  of  its  application  to  the  operation  of  actual 
government,  nor  the  method  of  its  application,  were 
yet  understood,  nor  was  the  latter,  which  is  the  prin- 
ciple of  ministerial  responsibility  applied  to  the  cabi- 
net, clearly  understood  for  another  century. 

With  the  accession  of  William  III.  we  enter  again 
upon  a  new  epoch  of  English  constitutional  history. 
The  fundamental  question  at  issue  between  Parlia- 
ment and  the  Stuarts,  where  does  sovereignty  reside 
in  the  English  state,  had  been  settled  never  to  be 
raised  again.  The  most  characteristic  feature  of  the 
new  age  was  not  a  question  of  fundamental  prin- 
ciples or  of  general  interpretation,  but  it  was  progress 
in  devising  machinery  by  means  of  which  the  decision 
of  the  fundamental  question  which  had  been  already 
reached  was  to  be  put  into  practical  operation  in  the 
details  of  government.  No  more  than  a  beginning 
was  made  during  the  reign  of  William  III.  and,  so 
far  as  any  clear  consciousness  of  what  was  really 

[359] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

going  on  is  concerned,  there  was  not  even  a  beginning. 
In  truth  considerable  progress  was  made  during  that 
reign  and  the  next  towards  what  was  ultimately  to  be 
the  result,  the  responsible  ministry,  but  the  progress 
of  the  period  shows  itself  wholly  upon  the  side  of 
practical  affairs,  not  at  all  in  ideas  or  understanding. 
William  III.  still  retained  a  very  decided  control  over 
the  conduct  of  government,  particularly  in  foreign 
affairs,  and  over  the  choice  of  ministers.  He  never 
dreamed  of  allowing  Parliament  any  voice  direct  or 
indirect  in  this  latter  matter.  He  made  a  beginning, 
however,  through  practical  experience  upon  the  lesson 
which  was  more  fully  learned  in  the  next  reign,  that 
the  easiest  way  to  accomplish  what  he  desired,  the 
line  of  least  resistance  in  carrying  out  his  policy,  was 
to  choose  his  chief  ministers  from  those  political 
leaders  who  were  best  able  to  secure  the  support  of 
Parliament.  This  was  a  most  important  discovery.  I 
am  not  asserting  that  its  bearings  were  as  yet  under- 
stood. It  was  not  as  yet  a  matter  of  principle  but  of 
mere  momentary  convenience,  but  it  was  in  truth  the 
germ  from  which  grew  the  later  doctrine  of  minis- 
terial responsibility  with  all  its  applications  in  the 
present  constitution.16 

16  The  cabinet  and  the  responsible  ministry  are  coming  into  existence  at 
about  the  same  time  and  by  parallel  lines  of  development.  The  origin 
of  the  cabinet  need  not  be  here  discussed,  but  that  it  can  be  traced,  as 
the  beginning  of  a  continuous  growth,  to  any  period  before  the  reign 
of  Charles  II.  seems  to  me  exceedingly  doubtful.  It  will  be  understood, 
I  think,  without  special  discussion  that,  the  existence  of  a  cabinet  does 

[360] 


MAGNA  CARTA  AND  RESPONSIBLE  MINISTRY 

This  change  may  be  described  in  other  terms.  In  the 
reign  of  Charles  II.  impeachment,  representing  the 
old  form  of  ministerial  responsibility,  was  a  survival, 
in  the  scientific  sense  of  the  word,  destined  speedily  to 
disappear,  and  the  new  and  modern  form  was  fore- 
shadowed on  its  institutional  side  in  the  experiments 
to  find  a  mediating,  harmonizing  body  between  king 
and  Parliament.  Of  these  Sir  William  Temple's  pro- 
posed reorganization  of  the  Privy  Council  is  the  most 
famous,  but  it  is  not  the  one  from  which  the  modern 
form  developed.  That  came  more  directly  from  the 
disliked  and  suspected  ministerial  clique  which  the 
king  himself  formed,  but  rather  from  that  as  it  was 
re-established  under  William  III.  than  from  Charles 
II. 's.  The  birth  of  the  idea  of  ministerial  responsibil- 
ity on  the  other  hand  can  hardly  be  traced  back  so  far 
and  is  to  be  found  coming  into  existence  very  slowly 
after  the  beginning  of  the  eighteenth  century,  though 
the  idea  was  in  a  sense  involved  in  such  an  experiment 
as  Sir  William  Temple's. 

How  wholly  unconscious  was  the  real  development 

not  carry  with  it  the  idea  or  practice  of  ministerial  responsibility,  as 
it  does  not  in  the  United  States,  and  that  the  two  are  independent  in 
origin.  I  must  emphasize  here  again,  however,  as  I  have  elsewhere  in 
regard  to  the  origin  of  the  representative  system  and  of  taxation,  the 
necessity  of  distinguishing  in  constitutional  history  between  ideas  and 
the  institutions  in  which  they  are  embodied,  or  by  means  of  which  they 
are  operated  practically.  The  two  are  often  in  origin  and  early  devel- 
opment quite  independent  of  one  another  and  the  failure  of  the  historian 
to  notice  the  distinction  often  results  in  unnecessary  confusion  and 
difficulty. 

[361] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

which  was  going  on  at  that  time  is  strikingly  recorded 
in  the  Act  of  Settlement  of  the  last  year  of  William's 
reign.  In  clauses  IV.  and  VI.  of  that  document,  as 
is  well  known,  Parliament  attempted  to  destroy  the 
beginnings  of  the  cabinet  system  in  order  to  protect 
what  it  believed  to  be  its  means  of  enforcing  respon- 
sibility and,  if  those  clauses  had  been  put  into  force, 
would  have  succeeded.  That  is  to  say,  Parliament  had 
so  little  conception  of  how  best  to  realize  its  own  su- 
premacy that  it  deliberately  tried,  in  the  interest  of  an 
obsolete  method,  to  end  the  line  of  progress  which  was 
bringing  in  the  most  effective  means  ever  devised,  or 
apparently  devisable,  for  operating  a  republic  under 
the  forms  of  a  monarchy. 

The  continued  ongoing  of  a  development  not 
understood  by  the  statesmen  of  the  time  but  showing 
itself  more  and  more  plainly  in  the  facts  is  the  most 
interesting  feature  of  eighteenth-century  constitu- 
tional history.  The  fortunate  accident  that  for- 
eigners came  to  the  throne  with  the  accession  of  the 
House  of  Hanover,  who  did  not  know  the  effect  of 
what  was  occurring  upon  their  position  or,  if  they 
suspected  it,  did  not  know  how  to  prevent  it,  combined 
with  the  fact  that  statesmen  and  observers  were 
equally  ignorant,  secured  half  a  century  of  growth 
prefectly  natural,  undisturbed  either  by  opponents  or 
theorists.  How  modern  the  result  was  becoming  is 
shown  by  a  series  of  facts  occurring  toward  the  middle 
and  end  of  the  period,  and  how  unnoticed  it  was  is 

[362] 


MAGNA  CARTA  AND  RESPONSIBLE  MINISTRY 

equally  shown  by  the  isolated  character  of  these  facts, 
that  they  were  not  even  thought  of  by  any  one  as 
common  characteristics  of  a  single  constitutional 
result.17 

The  character  of  the  result  is  also  shown  by  another 
fact  which  the  eighteenth  century  could  not  under- 
stand but  the  meaning  of  which  is  clear  to  us,  the 
dropping  of  impeachment  as  a  parliamentary 
weapon.18  There  is  no  case  of  impeachment  in  the  old 

17  The  first  two  reigns  of  the  House  of  Hanover  form  a  period  more 
important  in  the  development  of  the  cabinet  than  of  the  idea  of  min- 
isterial responsibility;  in  fact  the  very  smoothness  of  cabinet  develop- 
ment to  the  fall  of  Sir  Robert  Walpole  probably  hindered  to  some 
extent  any  clear  understanding  of  the  relationship  which  should  exist 
between  the  cabinet  and  the  legislature,  or  of  the  way  in  which  the 
legislature  might  control  government  policy  and  administration  through 
its  control  of  the   cabinet.     If,  however,  there  was   apparently  little 
progress  in  the  understanding  of  the  facts,  there  was  a  steady  drift  in 
the  facts  themselves  towards  the  principle  that  the  cabinet  must  be  in 
harmony  with  Parliament,  or  with  the  public  opinion  of  the  country. 
This  is  the  meaning  of  the  fall  of  Walpole  in  1742,  of  the  failure  of 
Granville  to  form  a  ministry,  and  of  the  appointment  of  Pitt  to  the 
ministry  in  1746,  against  the  will  of  the  king,  as  well  as  of  the  circum- 
stances of  his  final  accession  to  the  cabinet  about  ten  years  later,  to  go 
no  farther. 

18  How  puzzled  contemporaries  were  by  the  changes  which  were  going 
on  is   shown  by  the  debates  on  responsibility  which  occurred  in  the 
generation  following  the  Revolution.     Parliament  is  vaguely  conscious 
that  its  old  weapons  to  enforce  responsibility  are  out  of  date  and  use- 
less, but  is  utterly  at  a  loss  to  understand  what   to  employ   in  their 
place.     The  reason  why  impeachment  became  obsolete   is  exactly  the 
same  as  the  reason  why  the  royal  veto  did  in  the  same  period.     In  one 
case  the  reasons  are  regarded  from  the  side  of  Parliament,  in  the  other 
from  the  side  of  the  king.     Conflict  of  the  old  sort  between  executive 
and  legislature,  requiring   the   use   of  either    weapon,  was   no  longer 
possible.    Conflicts  of  the  new  age  were  between  phases  of  public  opinion 
represented  by  parties  in  the  legislature  and   both  nominal  and  real 
executive  were  wholly  dependent  upon  the  legislative  result. 

[363] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

sense  after  the  close  of  the  struggle  with  the  Stuarts. 
Contemporaries  believed  that  the  impeachment  of 
Somers  and  his  fellows  in  1701  for  their  share  in  the 
Partition  Treaty  was  an  instance  of  its  use  for  the 
old  purpose,  but  plainly  it  was  not,  nor  was  any  later 
impeachment  or  proposed  impeachment.19  It  is 
hardly  necessary  but  it  serves  the  purpose  of  this  dis- 
cussion to  state  the  reason  why.  Impeachment  had 
been  devised  in  the  struggle  between  king  and  Par- 
liament over  the  old  issue,  the  seat  of  sovereignty  in 
the  state.  Its  purpose  was,  exactly  like  that  of  clause 
61  of  Magna  Carta  and  every  other  expedient  of  the 
old  type,  to  hold  the  king  to  a  real  responsibility  with- 
out the  danger  of  civil  war  and  revolution  which 
would  result  in  those  centuries,  and  perhaps  at  any 
time,  from  holding  him  to  a  formal  responsibility. 
For  this  purpose  it  was  the  most  effective  of  all  the 
older  expedients,  though  all  of  them  were  in  a  way 
successful  when  the  king  did  not  obstinately  insist 
upon  his  own  responsibility.  But  that  issue  was  now 
settled.  It  never  reappeared  after  the  Revolution  of 
1688.  The  real  issues  were  no  longer  those  of  a  fun- 
damental interpretation  of  the  Constitution  between 
king  and  Parliament,  but  those  of  purpose  and  policy 

19  Hallam  says  that  these  impeachments  "have  generally  been  reckoned  a 
disgraceful  instance  of  party  spirit."  See  Constitutional  History  (1854), 
III.  144-145,  230.  It  may  be  added  that  the  practice  of  withholding 
supplies  as  a  means  of  coercion  has  also  been  practically  abandoned  for 
the  same  reason. 

[364] 


MAGNA  CARTA  AND  RESPONSIBLE  MINISTRY 

in  the  daily  operation  of  government  between  the 
leaders  of  groups  of  opinion  in  the  nation  whose  equal 
loyalty  to  the  Constitution  was  unconsciously  ac- 
cepted early  in  the  period.  In  such  a  situation  it  was 
instinctively  felt  that  it  was  an  unworthy  use  of  a 
party  advantage  to  subject  the  leaders  of  the  oppo- 
site side  to  a  criminal  prosecution  and,  though  it  was 
not  yet  seen  what  could  be  used  in  its  place  to  enforce 
responsibility,  impeachment  was  tacitly  dropped.20 

With  the  accession  of  George  III.  there  came  to 
the  throne  a  king  who,  if  he  did  not  understand  the 
cabinet  system  as  we  do,  understood  at  least  what  its 
growth  had  cost  the  crown.  It  is  significant  of  the 
great  change  which  had  come  about  in  a  century  that 
George  III.'s  attempt  to  recover  power  was  not  an 
attack  upon  the  settlement  of  1660,  it  was  no  attempt 
to  raise  again  the  issue  of  the  fundamental  interpreta- 
tion of  the  Constitution,  but  it  was  an  attack  upon  the 

20  The  only  coercion  of  the  executive  which  any  one  would  now  think 
possible  is  the  coercion  of  a  cabinet  which  refused  to  yield  to  any  of  the 
ordinary  means  of  discipline.  Until  the  day  of  revolution  comes,  this 
would  surely  be  coercion  in  a  party  conflict,  that  is,  upon  a  question 
of  public  policy,  not  upon  a  fundamental  constitutional  issue.  Such 
constitutional  questions  as  have  seemed  to  arise  in  the  last  hundred 
years  have  not  been  questions  of  the  fundamental  nature  of  the  Consti- 
tution as  a  whole  but  of  the  date,  degree,  and  method  of  further 
advance  in  a  development  to  which  in  general  the  Constitution  was 
already  committed.  I  believe  this  to  be  essentially  true  of  the  ques- 
tions raised  on  the  passage  of  the  Parliament  Act,  though  the  changes 
which  it  has  made  are  of  far-reaching  importance. 

The  outside  observer  is  tempted  to  believe  that  the  tendencies  of 
British  political  life  during  the  past  twenty  years,  with  the  great 
majorities  returned  in  parliamentary  elections,  the  growing  strictness 

[365] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

results  achieved  since  the  death  of  William  III. 
Neither  king  nor  cabinet  understood,  however,  during 
the  first  period  of  the  reign  the  full  meaning  of  the 
new  institution.  Had  it  been  understood,  had  minis- 
terial responsibility  of  the  modern  type  existed  then, 
it  is  no  exaggeration  to  say  that  the  American  Revo- 
lution would  not  have  occurred.  But  the  ministry  of 
Lord  North  was  the  real  accomplishment  of  the  king's 
purpose,  and  a  real  return  to  the  situation  under  Wil- 
liam III.,  when  the  king  determined  the  policy  of  the 
government  and  the  business  of  the  cabinet  was  to 
carry  out  his  policy  under  a  direct  responsibility  to 
him  and  only  a  secondary  responsibility  to  Parlia- 
ment. The  failure  of  the  attempt  to  bring  the  colo- 
nies back  to  their  allegiance  was  also  the  failure  of 

of  party  bonds,  and  the  probable  effect  of  some  of  the  legislation 
adopted,  have  been  away  from  the  supposition  which  lies  at  the  basis  of 
ministerial  responsibility,  the  supposition  that  members  of  the  House 
of  Commons  who  have  supported  the  cabinet  on  one  measure  will  vote 
against  it  on  another.  It  would  seem  hardly  possible  that  this  tendency 
should  go  much  farther  without  destroying  ministerial  responsibility 
of  the  old  type  and  making  the  cabinet  the  absolute  master  of  Parlia- 
ment. It  may  be  added  that  the  situation  in  this  respect  during  the 
Great  War,  while  doubtless  abnormal  and  temporary,  probably  indi- 
cates a  natural  tendency.  While  undoubtedly  ministerial  responsibility, 
as  it  existed  thirty  years  ago,  secures  a  more  democratic  government 
than  the  American  system,  with  its  complete  separation  of  executive 
and  legislature,  that  is,  a  government  which  yields  more  quickly  to 
changes  of  public  opinion,  if  the  result  suggested  above  should  occur 
it  would  then  be  open  to  question  whether  the  American  system,  with 
its  more  frequent  congressional  elections,  would  not  prove  more  demo- 
cratic. It  is  interesting  to  note  that  during  the  same  period,  the  past 
thirty  years,  the  direct  influence  of  the  President  upon  congressional 
legislation  has  increased  very  greatly  though  by  methods  that  are 
indirect. 

[366] 


MAGNA  CARTA  AND  RESPONSIBLE  MINISTRY 

this  last  attempt  of  all  to  interfere  with  the  natural 
development  of  the  Constitution. 

It  is  my  belief  that  the  event  which  had  the  greatest 
influence  in  bringing  the  public  mind  of  Britain  to  an 
understanding  of  the  cabinet  system  and  the  modern 
principle  of  ministerial  responsibility  was  the  struggle 
of  the  younger  Pitt  to  maintain  himself  against  a 
hostile  House  of  Commons.  He  succeeded  but  his 
success  rendered  another  like  it  impossible.  But  this 
was  not  even  then  an  immediate  understanding.  Full 
understanding  comes  slowly  and  gradually,  by  an 
unconscious  process  of  reflection,  not  by  revelation, 
through  the  next  twenty-five  years.  Two  incidents 
between  1784  and  the  close  of  the  century  show  how 
incomplete  the  understanding  still  was.  Three  years 
after  Pitt's  triumph  the  Constitution  of  the  United 
States  was  framed  by  a  large  assembly  of  the  most 
experienced  public  men  and  students  of  politics  in 
America,  who  considered  with  care  the  problem  of 
setting  up  a  government  to  operate  in  the  best  way. 
One  great  problem  before  them,  set  by  the  situation 
of  the  time,  was  to  secure  a  really  effective  executive 
while  leaving  ultimate  authority  in  the  legislature  as 
representing  the  people,  exactly  the  problem  which 
ministerial  responsibility  solves.  In  their  Constitu- 
tion, however,  not  merely  did  they  entirely  separate 
the  executive  and  legislative  departments,21  but  they 

21  The  practical  result  of  the  English  cabinet  system,  though  a  result 
never  theoretically  desired  or  intended,  is  a  union  of  the  executive  and 

[3671 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

gave  little  attention  to  the  cabinet,  and  they  seem  to 
have  had  no  idea  whatever  of  ministerial  responsi- 
bility. It  seems  altogether  probable  that  they 
thought  that  in  this  respect  they  were  following  the 
English  model,  as  beyond  question  they  did  when  they 
adopted  impeachment,  and  certainly,  had  there 
existed  in  England  any  such  definite  idea  of  minis- 
terial responsibility  as  fifty  years  later,  there  would 
have  been  some  discussion  of  it  in  the  Convention. 
The  other  incident  is  even  more  indicative  of  English 
understanding.  In  1791  Parliament  under  the  lead- 
ership of  Pitt's  ministry  framed  a  new  government 
for  Canada.  The  debate  on  the  bill  shows  conclu- 
sively that  the  desire  was  to  give  to  Canada  the  same 
kind  of  government  which  England  had,  and  I  think 
there  can  be  no  question  but  that  this  was  honestly 
intended.  And  yet  no  responsible  ministry  was 
granted,  or  even  proposed,  and  the  foundation  was 

the  legislature.  That  this  result  was  not  foreseen  when  the  first  steps 
towards  it  were  taken  in  the  second  half  of  the  seventeenth  century 
is  evident  from  the  ideas  of  Clarendon  and  Locke  on  the  separation  of 
the  departments  of  government.  On  Clarendon  see  Carlyle,  Eng.  Hist. 
Rev.,  XXVII.  252-253,  and  on  Locke  the  second  Treatise,  chapters  XII. 
and  XIII.  Locke's  ideas  no  doubt  had  a  good  deal  of  weight  in 
America,  but  if  the  European  cabinet  system  had  been  generally  under- 
stood the  advantages  of  that  system  as  compared  with  Locke's  ideas 
would, '  it  is  likely,  have  been  carefully  considered  and  the  resulting 
decision  in  America  would  have  been  at  least  doubtful.  See  the  thor- 
ough study  of  the  Convention's  attitude  towards  a  cabinet  in  Learned, 
The  President's  Cabinet,  chapter  II.,  and  cf.  Farrand,  Framing  of  the 
Constitution,  pp.  166,  171. 

[368] 


MAGNA  CARTA  AND  RESPONSIBLE  MINISTRY 

laid  for  the  later  Canadian  rebellion  which  opened  a 
new  era  in  British  colonial  government.22 

It  is  from  the  opening  years  of  the  nineteenth  cen- 
tury that  we  must  date  a  full  understanding  of  the 
cabinet  system  and  of  the  way  in  which  ministerial 
responsibility  is  enforced  through  it,  though  even  then 
the  understanding  was  rather  that  of  practical  action 
than  of  theoretical  description.23  It  was  not  until 
about  the  middle  of  the  century  that  descriptions  of 
the  system  were  written  that  seem  satisfactory  to  us, 
and  well  past  the  middle  before  any  treatise  was  pub- 
lished upon  the  new  Constitution  as  a  whole. 

The  conclusion  from  this  outline  sketch  seems  in- 
evitable. The  break  between  the  medieval  form  of 
ministerial  responsibility  and  the  modern  was  com- 
plete. In  the  period  from  1688  to  1714  the  new  was 
beginning  to  take  shape,  but  the  old  had  in  every  real 
sense  already  disappeared.  Contemporaries  were 

22  See  my  paper,  "The  Influence  of  the  American  Revolution  on  Eng- 
land's Government  of  her  Colonies,"  Annual  Report  of  the  American 
Historical  Association  for  1896,  I.  373-389;  Lord  Durham's  Report  (ed. 
Sir  C.  P.  Lucas,  1912),  voL  I.,  chapters  III.,  IV.,  and  V.,  vol.  II.,  pp. 
76-82,  277-285;  F.  Bradshaw,  Self -Government  in  Canada  (1903);  A.  B. 
Keith,  Responsible  Government  in  the  Dominions  (1912),  pt.  I.,  chap- 
ter I. 

23  See  the  account  of  the  literature  in  Learned,  pp.  37  ff.    Even  so  acute 
a  student  of  constitutional  history  as  Hallam  did  not  clearly  under- 
stand the  change  which  had  been  made  by  the  cabinet  system,  and  did 
not  later  modify  the  statements  of  his  first  edition  of  1827.     Const. 
Hist.    (1854),  III.  183-185;   (first  ed.,  London,  1827),  II.  535-539.     A 
considerable  influence  in  the  development  of  nineteenth-century  opinion 
and  understanding  was   the  discussion  in  England  between  1830  and 
1840  of  the  Canadian  demands  and  Lord  Durham's  Report  of  1839. 

[369] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

wholly  ignorant  of  what  the  new  was  to  be,  but  they 
felt  that  the  old  was  gone.  They  discussed  the  evil 
case  in  which  they  were  left,  they  sought  to  find  some 
way  of  holding  ministers  responsible,  they  even  tried 
to  revive  the  old  method,  but  their  discussions  and 
attempts  led  to  nothing.24  The  new  came  into  exist- 
ence without  regard  to  their  efforts  and  by  the  force 
of  events  which  they  did  not  understand.  But  it  grew 
neither  out  of  the  old  issue  between  king  and  Parlia- 
ment, nor  out  of  the  old  forms  of  coercion.  Its  origin 
is  to  be  found  in  the  efforts  to  work  in  daily  govern- 
ment the  compromise  made  in  1660.  The  English 
cabinet  is  a  piece  of  machinery  devised  for  operating  a 
government  in  which  sovereignty,  and  therefore  the 
real  executive,  is  actually  vested  in  a  legislative 
assembly,  while  in  form  it  is  vested  in  a  personal 
monarch.  Ministerial  responsibility,  operated  by 
what  we  call  party  government,  is  the  method  of 
coercion  applied  in  such  a  Constitution  to  the 
actual,  not  to  the  theoretical,  executive.  It  has 
for  its  object  not  merely  to  compel  the  executive 
to  regard  the  fundamental  law  of  the  state,  which  is  a 
principle  now  so  thoroughly  established  that  it  is  never 
likely  to  be  questioned,  but  also  to  carry  out  in  the 

24  See  Anson,  Eng.  Hist.  Rev.,  XXIX.  63.  Direct  coercion  of  the  king 
was  even  thought  of:  "Harley  after  reminding  his  hearers  that  they  had 
their  negative  voice  as  the  King  had  his,  and  that,  if  His  Majesty 
refused  them  redress,  they  could  refuse  him  money,  moved  that  they 
should  go  up  to  the  Throne  not,  as  usual,  with  a  Humble  Address,  but 
with  a  Representation."  Macaulay,  chapter  XX.,  vol.  IV.  (1858),  pp. 
483-484. 

[370] 


MAGNA  CARTA  AND  RESPONSIBLE  MINISTRY 

details  of  government  the  policy  which  Parliament 
decides  upon.  In  one  sense,  in  the  sense  of  everyday 
practical  action,  it  may  be  said  to  have  taken  the  place 
of  the  older  principle  of  the  right  to  coerce  the  king, 
but  in  truth  it  is  that  principle  applied  to  the  real 
executive  and  the  older  form  still  exists  in  the  back- 
ground of  the  Constitution,  and  conceivably  might  be 
called  into  action  in  some  revolutionary  age. 

If  it  is  true  that  the  limited  monarchy  is  derived 
from  the  principle  introduced  into  English  history  by 
Magna  Carta,  that  the  king  may  be  compelled  to  ob- 
serve the  fundamental  law  of  the  state,  then  both  the 
medieval  and  the  modern  forms  of  coercion,  though 
independent  of  one  another,  belong  equally  in  that 
line  of  development.25  The  struggle  of  the  seven- 
teenth century  was  the  last  struggle  of  the  absolute 
monarchy  to  maintain  itself  against  the  limited  mon- 
archy. From  the  side  of  the  limited  monarchy  it  was 
a  period  when  the  foundation  and  final  defense  of  that 
form  of  constitution,  in  the  will  of  the  people  ex- 
pressed through  their  representatives,  came  to  be  ap- 
prehended. But  all  alike,  the  triumph  of  limited 

25  If  any  one  will  read  the  Bill  of  Rights  with  the  thought  consciously 
in  mind  that  the  fundamental  principle  introduced  into  the  English 
constitution  by  Magna  Carta  was  that  the  king  must  keep  the  law  and 
that  if  he  will  not  he  may  be  forced  to  do  so,  I  believe  it  will  be  at 
once  clear  that,  in  spite  of  all  the  changes  of  form  and  method  in  the 
interval,  there  had  been  no  change  in  this  fundamental  principle.  It  is, 
in  the  simple  form  in  which  I  have  stated  it,  the  obvious  foundation 
on  which  the  Bill  of  Rights  rests,  and  which  it  almost  states  in  so  many 
words. 

[371] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

monarchy,  the  discovery  of  its  scientific  justification, 
and  the  machinery  invented  to  carry  it  into  practice, 
belong  historically  in  the  direct  line  of  evolution 
begun  by  Magna  Carta,  are  later  stages  of  the  de- 
velopment which  first  dates  from  it. 


[372] 


APPENDIX  I 

THE  DESCENDANTS  OF  THE  CURIA  REGIS 

THE  publication  by  Mr.  L.  O.  Pike  in  1907  of  a  chart  of  the 
descent  of  English  institutions,1  led  me  to  print2  a  somewhat 
similar  chart  which  I  had  used  for  a  number  of  years  in  my 
instruction  in  English  constitutional  history  in  Yale  College.  I 
judge  from  letters  received  that  it  may  prove  useful  to  repro- 
duce it  here. 

It  will  be  seen  at  once  on  comparison  that  Mr.  Pike's  chart  is 
more  complete  than  mine,  that  it  contains  more  detail,  and  gives 
more  attention  to  chronology.3  My  own  was  kept  intentionally 
free  from  detail,  and  made  to  include  only  the  larger  features  of 
the  constitution  in  order  to  bring  out  as  clearly  as  possible,  for 
class  room  purposes,  the  relation  of  the  principal  modern  insti- 
tutions back  to  the  curia  regis,  and  the  generic  position  which  the 
curia  occupies  in  constitutional  history.  From  its  very  simpli- 
city, I  venture  to  think  that  this  chart  brings  out  graphically 
these  points  and  relationships,  which  it  is  of  great  importance 

1  The  Public  Records  and  the  Constitution.    A  Lecture  (London,  1907), 
by  Luke  Owen  Pike. 

2  In  the  American  Historical  Review,  XIII.  11-15   (1907).     Repetitions 
in  this  appendix  of  points  made  in  the  text  in  other  words  are  inten- 
tionally  left   standing   as   originally  written.     I   have   also   allowed   the 
derivation  of  the  Court  of  Common  Pleas  as  represented  in  the  chart  to 
stand,  though  it  is  not  in  accordance  with  the  suggestion  made  in  note  A 
at  the  end  of  chapter  III.,  because  that  suggestion  is  put  forward  for 
the  present  as  a  conjecture  merely.     If  it  proves  to  stand  the  test  of 
examination  the  line  of  the  common  pleas  should  branch  off  from  the 
line  of  the  justices  in  eyre. 

3  Reference  should  also  be  made  to  a  chart  of  the  descent  of  French 
institutions,  which  has  special  reference  to  the  various   royal  councils, 
published  by  M.  Noel  Valois  in  Le  Conseil  du  Roi  aux  XIVs,  XV*,  et 
XF/e  Siecles  (Paris,  1888). 

[  373  ] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

to  keep  in  mind,  more  clearly  than  does  Mr.  Pike's.     This  is  its 
only  special  value. 


Curia  Regis- 


Justices  In  Cyr« 

Exchequer 
Common  Pleas 
King's  Bench 

Chancery 

Star  Chamber 
Cabinet 
Prluy  Council 
House  of  Lords 


To  understand  English  constitutional  history,  particularly  the 
more  puzzling  features  of  it,  there  are  two  things  which  must 
be  seen  clearly  at  the  beginning  and  never  lost  from  sight.  The 
first  of  these  is  the  position  of  the  curia  regis  in  the  feudal 
state — the  fact  that  the  feudal  government  was  simple  and  un- 
differentiated  and  that  the  general  organ  of  that  government, 
the  organ  for  everything  not  merely  local,  was  the  curia  regis. 
All  those  functions  which  we  are  accustomed  to  assign  in  the 
modern  state  to  different  institutions,  or  sets  of  officials,  were 
exercised  in  the  feudal  state  by  the  curia  without  consciousness 
of  difference  or  any  attempt  at  distinction.  I  am  accustomed  in 
my  instruction  to  emphasize  three  general  functions  as  espe- 
cially defining  the  business  of  the  curia — legislative,  judicial, 
and  conciliar.*  The  point  which  it  is  of  the  greatest  importance 
to  understand  clearly  at  the  start  is  that  these  three  functions, 
which  we  should  call  distinct,  were  exercised  without  distinction 
by  the  one  institution,  the  curia  regis.  As  I  have  said  else- 
where: "In  a  single  session  of  the  court,  advice  might  be  given 
to  the  king  on  some  question  of  foreign  policy,  and  on  the  making 

4  For  completeness,  the  function  of  the  curia  in  reference  to  the  admin- 
istrative system  should  also  be  included,  and  Mr.  Pike's  chart  brings  out 
as  mine  does  not  the  relation  of  these  institutions  in  later  times  to  the 
others  which  were  derived  from  the  common  source. 


[374] 


APPENDIX 

or  revising  of  a  law ;  and  a  suit  between  two  of  the  king's  vassals 
might  be  heard  and  decided:  and  no  one  would  feel  that  work 
of  different  and  somewhat  inconsistent  types  had  been  done. 
One  seemed  as  properly  the  function  of  the  assembly  as  the 
other."5 

The  second  fact  which  must  never  be  forgotten  is  the  exist- 
ence of  the  curia  regis  in  two  forms.  The  fact  is  so  peculiar 
according  to  modern  ideas  that  it  is  difficult  to  describe  it  in 
language  which  is  at  the  same  time  accurate  and  sufficient  to 
convey  an  understanding  of  the  case.  The  curia  regis  was  con- 
stantly in  session  under  one  or  the  other  of  two  forms,  never 
at  the  beginning  apparently  under  both  at  once.  One  is  the 
great  curia  regis,  called  after  a  time  magnum  concilium,  meeting 
occasionally  only,  on  special  summons,  and  composed  of  all 
tenants-in-chief,  lay  and  ecclesiastical,  who  might  be  summoned, 
and  the  great  officers  of  state  and  of  the  household,  who  un- 
doubtedly in  early  times  would  all  be  included  also  among  the 
tenants-in-chief.  The  other  is  the  small  curia,  practically  in 
constant  session  when  the  other  was  not,  called,  when  men  began 
to  distinguish  it  somewhat  clearly  from  the  other,  the  perpetual, 
or  ordinary  council,  and  composed  of  the  royal  officers,  and  of 
tenants-in-chief  who  were  in  attendance  on  the  king,  or  might 
happen  to  be  at  court.  The  point  of  importance  and  of  difficulty 
is  not  the  composition  or  the  meeting  of  the  smaller  curia,  but 
the  fact  that  it  was  in  rights,  powers,  and  functions,  the  larger. 
It  was  not  a  committee  of  the  larger,  its  powers  were  not  vested 
in  it  by  the  larger,  it  was  not  responsible  to  the  larger;  it  was 
the  larger.  Whatever  the  larger  might  do  the  smaller  might  do, 
and  the  three  functions  which  I  have  named  as  belonging  to  the 
curia  regis  in  the  feudal  state  were  exercised  by  it  under  both 
forms  alike. 

These  then  are  the  two  essential  things  to  have  clearly  in  mind 
in  beginning  to  study  the  constitutional  history  of  England:  that 
all  the  functions  of  the  state  were  exercised  by  a  single  insti- 
tution, and  that  that  institution  existed  under  two  forms  which 

5  The  Political  History  of  England,  vol.  II.  (1905),  p.  182. 

[375] 


were  distinguished  from  each  other  only  by  size  and  manner  of 
meeting.  Now  the  process  by  which  the  modern  constitution  has 
been  formed  from  this  simple  feudal  state  was  that  of  differ- 
entiation— first,  the  setting  off  of  a  particular  sort  of  business 
into  a  class  by  itself,  for  mere  convenience  sake,  therf  the  assign- 
ment of  certain  men  belonging  to  the  curia  to  have  the  special 
duty  of  looking  after  that  class  of  business.  So  gradually  a 
cleavage  took  place  which  after  a  time  gave  rise  to  a  separate 
institution.  In  this  way  one  institution  after  another  was  thrown 
off  from  the  original  curia,  the  differentiation  following  always 
the  general  lines  of  function.  It  should  be  noticed  also  that  it 
was  from  the  small  curia  in  all  cases  that  the  splitting  off 
occurred.  This  is  natural,  for  the  fact  that  it  was  in  constant 
session  put  into  its  hands  particularly  the  carrying  on  of 
government. 

What  the  first  differentiation  was,  I  believe  no  one  can  say 
with  certainty,  but  I  am  inclined  to  think  that  it  was  a  tendency 
to  set  off  by  itself  the  financial  business  which  we  know  as 
exchequer  business.  However  this  may  be,  the  differentiation 
which  is  fundamental  and  which  has  the  largest  influence  on 
later  history  is  that  of  the  smaller  from  the  larger  curia  regis. 
As  the  formation  of  two  distinct  institutions,  generally  recog- 
nized as  such,  this  took  place  only  during  the  thirteenth  cen- 
tury, but  we  may  fairly  say  that  it  began  when  men  began  to 
notice  that  the  curia  existed  under  two  forms.  We  probably  can 
detect  this  fact  in  written  evidence  no  earlier  than  the  reign  of 
Henry  I.6  I  have  endeavoured  to  represent  on  the  chart  the  two 
as  going  on  side  by  side  and  united  till  about  that  time,  and  then 
beginning  to  separate  and,  from  a  later  point,  from  some  time 
in  the  thirteenth  century,  rather  before  the  separation  of  the 
chancery  system,  as  running  down  to  the  present  along  two 
parallel  lines. 

6  To  me  it  seems  impossible  to  suppose  that  the  curia  did  not  exist  in 
these  two  forms  in  the  earlier  reigns,  and  probably  back  to  the  very 
beginnings  of  this  form  of  political  organization.  Whether  this  can  be 
proved  or  not,  is  another  matter. 

[376] 


APPENDIX 

At  this  point  must  be  emphasized  the  fact  that  both  divisions 
alike  carried  on  permanently  the  three  functions  of  the  original 
curia.  Circumstances  tended  in  each  line  to  emphasize  one  of 
these  functions,  to  subordinate  another,  and  to  dwarf  almost  out 
of  existence  a  third,  but  all  three  belonged  equally  to  each  insti- 
tution after  the  separation.  The  union  of  new,  representative 
elements  with  the  magnum  concilium  to  form  Parliament,  threw 
the  emphasis  in  that  line  upon  the  legislative,  but  the  House  of 
Lords  continued  to  exercise  the  judicial  function,  though  it  did 
not  share  it  with  the  House  of  Commons,  which  could  inherit 
nothing  from  the  curia  regis.7  The  separate  conciliar  function 
practically  disappeared,  though  not  as  the  right  of  the  indi- 
vidual peer,  nor  would  its  exercise  by  the  House  of  Lords  at  any 
time  in  the  past  have  seemed  a  straining  of  the  constitution.8 
Along  the  other  line  it  was  the  conciliar  function  which  was 
naturally  emphasized,  the  judicial  remained,  but  in  a  subordi- 
nate place,  and  the  legislative  became  insignificant,  the  modern 
orders  in  council  bearing  scarcely  a  trace  of  the  source  from 
which  they  came.  It  is  only  by  having  this  fact  clearly  in  mind 
that  we  can  understand  the  reason  for  such  seeming  anomalies 
in  the  English  constitution  as  the  process  of  impeachment,  and 
the  existence  of  two  supreme  courts  of  appeal,  the  one,  the 
House  of  Lords,  primarily  a  legislative  body,  the  other,  the 
judicial  committee,  a  part  of  the  king's  council. 

A  third  differentiation  began,  as  I  think  probable,  at  about  the 
same  time  as  the  two  already  mentioned,  though  it  was  not  put 
into  permanent  form  until  later,9  that  of  the  justices  in  eyre, 
intended  at  the  start  merely  to  exercise  in  local  districts,  instead 
of  at  the  king's  court,  for  convenience  and  greater  efficiency,  both 

7  That  the  judicial  power  of  the  House  of  Lords  was  exposed  to  some 
danger  in  the  thirteenth  century  from  the  development  of  royal  justice, 
and  in  the  fourteenth  from  some  confusion  of  mind  on  the  part  of  Par- 
liament, are  no  doubt  facts,  but  neither  affected  the  final  result  in  the 
least. 

8  The  action  of  the  Lords,  called  by  Charles  I.  to  meet  separately  on 
September  24,  1640,  at  York,  is  very  nearly  if  not  quite  a  case. 

9  See  Appendix  II. 

[377] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

administrative  and  judicial  functions  of  the  curia.10  The  itin- 
erant justices'  court  was  a  session  of  the  curia  held  locally.  By- 
degrees  the  administrative  functions,  which  these  itinerant  courts 
had  exercised  in  the  counties,  came  to  be  better  performed  by 
other  institutions  which  had  in  the  meantime  been  developing, 
and  they  gave  themselves  up  more  and  more  exclusively  to  their 
judicial  work,  but  unimportant  relics  of  the  old  administrative 
functions  of  the  curia  regis  may  still  be  found  in  the  operation 
of  these  courts  in  England,  and  of  their  American  representatives, 
our  circuit  courts.11  I  have  made  the  line  which  represents  the 
development  of  the  Exchequer  court  to  cross  the  line  of  these 
courts,  and  brought  it  into  close  relation  with  those  of  the  other 
common  law  courts,  because  in  my  use  of  this  chart  I  have  em- 
phasized the  judicial  development  and  paid  little  attention  to 
the  administrative.  Of  the  three  common  law  courts,  I  think  I 
have  placed  about  correctly  the  time  and  chronological  order  of 
their  evolution,  but  it  is  impossible  to  indicate  on  a  chart  the 
fact  that  they  were  brought  into  existence  by  the  continuous 
operation  of  the  same  principle. 

The  separation  of  the  chancery  system  from  the  council  I 
have  shown  by  a  broken  line  because,  while  the  jurisdiction  of 
the  chancellor  was  a  jurisdiction  belonging  to  the  council,  devel- 
oped by  it,  and  derived  by  the  chancellor  from  it,  the  chancellor 
never  exercised  that  jurisdiction  himself  in  or  through  the  council, 
but  only  outside  it,  as  more  or  less  of  a  usurpation,  an  absorp- 
tion at  least  of  a  function  not  originally  pertaining  to  him.  The 
function,  however,  just  as  truly  belonged  to  the  curia  regis  as 
did  that  which  fell  to  the  common  law  courts.  The  Court  of  Star 
Chamber  is  always  a  difficulty  to  the  beginner  in  constitutional 
study.  The  origin  and  right  of  its  functions,  its  institutional 
standing  ground,  and  the  ease  with  which  such  a  seemingly 

i°Mr.  Pike's  chart  distinguishes  the  justices  of  assize  from  the  justices 
in  eyre,  and  this  should  of  course  be  done  in  any  detailed  study. 
11  As  for  example  when  the  judge  instructs  the  grand  jury  to  report 
upon  the  way  in  which  the  jail  has  been  kept  by  the  sheriff  since  the 
last  session  of  the  court. 

[378] 


APPENDIX 

anomalous  piece  of  machinery  was  set  up  and  operated,  with  no 
sense  of  anything  revolutionary  or  unusual,  are  found  puzzling. 
It  is  most  easily  understood,  as  is  the  historical  ground  of  a 
separate  chancery  system,  when  it  is  carried  back  to  the  original 
curia  and  its  relationship  to  that  institution  is  made  clear. 

The  last  differentiation  which  I  notice  is  that  of  the  cabinet, 
but  this  is  of  so  peculiar  a  character  as  to  give  rise  to  a  problem 
for  the  maker  of  a  chart.  Historically  it  is  clearly  an  offshoot 
of  the  council  and  should  be  so  represented.  But  it  has  now 
absorbed  the  whole  conciliar  function  of  the  old  curia,  and  left 
the  Privy  Council  existing,  so  far  as  real  business  goes,  only  in 
committees.  Should  it  not  be  the  ending  of  the  main  line  instead 
of  an  offshoot?  Again  the  cabinet  has  brought  together  in  its 
hands  functions  which  make  it,  startlingly  for  modern  times,  a 
reproduction  of  the  old  smaller  curia.  Control  of  the  admin- 
istrative system  belongs  to  it.  Its  relation  to  Parliament  almost 
makes  it  a  legislative  body.  It  has  been  called  a  third  house. 
Only  the  judicial  function  is  lacking.  A  comparison  of  this  sort 
brings  out  clearly  the  position  of  the  cabinet  in  the  modern  con- 
stitution, but  it  is  quite  as  easy  to  show  historically  that  it  derives 
from  its  line  of  descent  only  one  of  these  functions,  the  conciliar, 
and  that  its  administrative  and  legislative  responsibilities  have 
come  to  it  from  other  sources. 


[379] 


APPENDIX   II 

HENRY  I/s  WRIT  REGARDING  THE  LOCAL  CouRTS1 

THE  text  of  Henry  I.'s  writ  regarding  the  local  courts,  pub- 
lished by  Dr.  Liebermann  in  his  Gesetze  der  Angelsachsen,  I. 
524,  presents  it  in  a  form  which  renders  its  interpretation  easier 
than  the  older  text  printed  by  Stubbs  in  his  Select  Charters,  p. 
104.2  For  convenience  Dr.  Liebermann's  text  is  given  here: 

Henricus  Dei  gratia  rex  Anglorum,  Samsoni  episcopo  et 
Ursoni  de  Abetot  et  omnibus  baronibus  suis,  Francis  et  Anglis, 
de  Wirecestrescira  salutem !  Sciatis,  quod  concedo  et  precipio, 
ut  amodo  comitatus  mei  et  hundreta  in  illis  locis  et  eisdem  ter- 
minis  sedeant,  sicut  sederunt  in  tempore  regis  Eadwardi;  et  non 
aliter.  Et  nolo,  ut  vicecomes  meus,  propter  aliquod  necessarium 
suum  quod  sibi  pertineat,  faciat  ea  sedere  aliter.  Ego  enim, 
quando  voluero,  faciam  ea  satis  summonere  propter  mea  dominica 
necessaria  ad  voluntatem  meam.  Et  si  amodo  exurgat  placitum 
de  divisione  terrarum  vel  de  preoccupatione,  si  est  inter  domi- 
nicos  barones  meos,  tractetur  placitum  in  curia  mea.  Et  si  est 
inter  vavasores  alicuius  baronis  mei  honoris,  tractetur  placitum 
in  curia  domini  eorum.  Et  si  est  inter  vavasores  duorum  domi- 
norum  tractetur  in  comitatu.  Et  hoc  duello  fiat,  nisi  in  eis  raman- 
serit.  Et  volo  et  precipio,  ut  omnes  de  comitatu  eant  ad  comi- 
tatus et  hundreta,  sicut  fecerunt  in  tempore  regis  Eadwardi;  et 
non  remaneat  propter  aliquam  pacem  meam  vel  quietudinem,  quin 
sequantur  placita  mea  et  iudicia  mea,  sicut  tune  temporis 
fecissent. 

A  simple  reading  of  this  writ  shows  that  it  falls  into  two  dis- 
tinct parts.  The  first,  down  to  the  sentence  beginning  Et  si 
amodo  exurgat,  deals  with  what  has  been  commonly  called  "the 
restoration  of  the  ancient  courts."3  Restoration  is  a  somewhat 

1  From  the  American  Historical  Review,  VIII.  487-490. 

2  In  the  original  article  printed  from  Liebermann,  Quadripartitus,  p.  165. 
For  the  text  see  also  Hist.  MSS.  Com.,  XII.,  App.  IX.,  p.  119. 

3  See  Stubbs,  Cons.  Hist.,  I.  425;  Liebermann,  Trans.  Royal  Hist.  Soc. 

[380] 


APPENDIX 

ambiguous  word.  It  may  mean  no  more  than  that  the  courts  had 
fallen  into  disorder  in  the  matters  of  time  and  place,  or  it  may 
mean  that  they  had  fallen  into  decay  and  disuse,  and  so  needed 
to  be  restored  as  a  system.  It  is  evident,  I  think,  from  the  lan- 
guage of  the  writ  that  only  the  first  can  be  meant.  The  writ 
shows  clearly  that  these  courts  have  been  meeting  constantly, 
indeed  it  would  seem  to  be  implied  that  they  have  been  meeting 
too  often,  and  this  inference  is  strengthened  by  the  form  of  state- 
ment in  the  Leges  Henrici,  VII.  I,4  where  this  writ  is  referred  to 
(nee  ullis  ultra  fatigacionibus  agitare  nisi  propria  regis  neces- 
sitas  .  .  .  .).  The  practice  against  which  this  order  is  especially 
directed  would  seem  to  be  the  abuse  of  his  position  by  the  sheriff 
to  order  the  meeting  of  the  local  courts  at  unusual  times  and 
places  for  some  purpose  of  his  own.  This  must  now  cease,  but 
the  king  seems  to  say,  to  paraphrase  the  last  sentence  of  this 
part  of  the  writ:  "I  cannot  promise  that  extra  sessions  of  the 
courts  will  never  be  called;  some  necessity  really  affecting  the 
state  may  arise  which  will  make  them  necessary,  but  if  such  a 
case  occurs  I  will  see  to  it  that  sufficient  notice  is  given  to  reduce 
the  inconvenience  to  the  smallest  possible." 

The  second  part,  which  follows  this  sentence,  gives  rise  to 
suggestions  which  seem  to  make  it,  institutionally  considered, 
much  the  more  important  portion  of  the  writ.  It  will  be  readily 
seen  that  this  part  concerns  three  things:  (1)  what  courts  shall 
have  jurisdiction  in  certain  cases;  (2)  a  question  of  procedure 
in  these  cases;  (3)  attendance  at  the  local  courts.  It  is  with  the 
first  of  these  points  that  question  immediately  arises.  Three 
kinds  of  cases  are  mentioned,  all  concerning  land  held  by  feudal 
tenure.  We  should  expect  them  to  be  tried  in  a  feudal  court 
and  by  feudal  law.  The  first  two  kinds  of  cases  mentioned  call 
for  no  comment.  A  case  between  two  vassals  of  the  king  goes 
into  his  court;  one  between  two  vassals  of  the  same  mean  lord 
goes  into  his  court,  as  we  should  expect.  But  the  third  strikes 

N.  S.,  VII.  93;  "rdtablissant  les  cours  de  comt£."     B&nont.    Rev.  Crit. 
Hist,  et  Lit.,  XXXIII.  469. 
*  Stubbs,  Select  Charters,  105. 

[381] 


us  with  some  surprise.  A  case  between  the  vassals  of  two  differ- 
ent lords  goes  into  the  county  court.  To  order  a  case  involving 
feudal  law  out  of  a  feudal  court  into  the  old  local  popular  court 
would  hardly  seem  to  be  possible.  Either  of  two  different  dis- 
positions of  the  case  would  seem  to  be  more  natural:  that  the 
case  should  be  tried  in  the  court  of  the  defendant,  see  Leges 
Henrici,  c.  XXV.,  or  that  it  should  be  tried  in  the  court  of  the 
first  overlord  common  to  both,  which  in  almost  all  cases  at  least 
would  be  the  court  of  the  king,  see  Constitutions  of  Clarendon, 
c.  IX.  A  suggestion  for  the  solution  of  this  difficulty  comes 
from  the  Constitution  of  Conrad  II.,  of  1037.  The  second  para- 
graph of  that  document,  after  providing  for  the  carrying  of  cer- 
tain cases  directly  to  the  king,  closes  thus:  Hoc  autem  de 
maioribus  walvassoribus  observetur.  De  minoribus  vero  in  regno 
aut  ante  seniores  aut  ante  nostrum  missum  eorum  causa  finiatur. 
If  the  king's  missus,  his  special  commissioner,  is  present  the  local 
court  becomes  the  king's  court  and  the  disposition  of  the  case 
made  by  the  writ  is  entirely  regular.  Can  we  go  so  far  as  to  say 
that  this  writ  gives  evidence  of  the  existence  of  itinerant  justice 
courts  as  early  as  1111,  regularly  organized  to  such  an  extent 
at  least  as  to  be  taken  for  granted? 

The  second  point  of  this  part  of  the  writ,  the  point  regarding 
procedure,  appears  to  bear  directly  on  this  question.  Cases  of 
this  sort  are  to  be  decided  by  the  duel,  unless  for  some  special 
reason  it  is  omitted.  It  would  seem  as  if  the  king's  meaning 
might  be  stated  as  follows :  the  case  is  to  go  into  the  county  court, 
but  there  need  be  no  fear  that  this  subjects  it  to  the  old  Saxon 
methods  of  trial;  the  court  is  the  king's,  not  the  old  popular 
court,  and  the  Norman  method  of  trial  is  preserved.  If  this 
interpretation  is  correct,  the  sentence  implies  that  this  arrange- 
ment was  not  entirely  new,  but  had  been  of  long  enough  standing 
at  least  for  this  question  of  procedure  to  arise  and  to  make  it 
seem  to  the  king  advisable  to  give  it  a  formal  answer. 

The  last  sentence  of  the  writ,  that  which  concerns  attendance 
at  the  local  courts,  seems  to  get  in  this  way  its  most  natural  inter- 
pretation also.  Its  essential  point  is  that  no  liberties  or  immu- 

[382] 


APPENDIX 

nities  are  to  excuse  from  attendance  when  king's  pleas  are  to  be 
tried,  that  is,  when  the  king's  justice  is  present,  exactly  the  later 
regulation  for  the  itinerant  justice  court  in  the  county.  If  we 
turn  again  to  the  passage  in  the  Leges  Henrici,  c.  VII.,  which  a 
few  years  later  made  use  of  this  writ  and  enlarged  upon  it,  we 
find  some  confirmation  for  this  interpretation.  VII.  2  states  the 
composition  of  the  county  court  in  terms  which,  while  different 
in  detail,  remind  us  strikingly  of  those  used  in  the  writ  of  Henry 
III.,  of  1231,5  which  is  usually  used  as  typical  of  the  composition 
of  the  county  court  which  met  the  itinerant  justices  in  the  thir- 
teenth century,  and  they  appear  to  include  the  same  classes  with 
the  possible  exception  of  the  burgesses.  It  is  hardly  possible  to 
suppose  that  this  is  the  everyday  shire  court  under  the  sheriff, 
acting  merely  as  sheriff.6  The  presence  of  the  bishop  is  par- 
ticularly noteworthy.  If  the  ordinary  interpretation  is  to  be 
given  to  the  writ  of  William  I.  separating  the  spiritual  and  tem- 
poral courts,  the  presence  of  the  bishop  in  the  ordinary  county 
court  would  not  be  easy  of  explanation.7  If  this  is  a  king's  court 
held  in  the  county,  his  presence  is  natural  and  to  be  expected. 
This  interpretation  is  rendered  almost  necessary  by  the  first 
words  of  VII.  3:  Agantur  itaque  primo  debita  verae  Christiani- 
tatis  jura;  secundo  regis  placita.  This  court,  whatever  it  is, 
tries  cases  which  affect  the  church.  Apparently  we  must  con- 
clude that  this  is  a  king's  court,  in  which  case  the  statement 
presents  no  difficulty;  or  we  must  modify  in  a  very  decided  way 
our  understanding  of  William's  legislation  on  this  point,  an  alter- 

5  Stubbs,  Select  Charters,  p.  358. 

6  This  would  seem  to  be  the  probable  conclusion  also  as  to  the  regit 
judices  of  Leges  Henrici,  c.  XXIX. 

7  In  William's  writ  (Stubbs,  8.  C.,  p.  85),  the  specific  reference  is  to  the 
hundred,  but  the  word  is  plainly  used  in  a  generic  sense.    As  the  most 
frequently  used  court,  the  hundred  may  well  stand  for  the  whole  body 
of  law  and  procedure  of  the  popular  courts.    In  these  respects  the  shire 
court  was  identical  with  the  hundred,  and  it  would  not  be  possible  to 
remove  ecclesiastical  cases  from  the  system  of  law  and  procedure  belong- 
ing to  the  hundred  courts  without  taking  them  at  the  same  time  out  of 
the  shire  courts.    See  Liebermann,  Qesetze,  I.  485,  d,  e. 

[383] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

native  which  is  not  easy  in  view  of  the  clearness  of  the  language 
in  which  that  is  expressed. 

In  this  article  as  originally  published,  I  supposed  that  the  case 
referred  to  in  Glanvill,  XII.  8,  similar  in  principle  to  that  of  the 
vavasores  duorum  dominorum  and  seeming  to  go  directly  to  the 
county  court,  should  be  allowed  some  weight  against  my  con- 
clusion. I  am  now  of  the  opinion  that  this  was  an  error,  and 
that  the  cases  falling  under  Glanvill,  XII.  8,  went  to  the  sheriff 
per  breve  domini  regis  like  those  of  default  of  right.  The  sheriff 
seems  to  have  been  called  justitia  regis  in  the  reign  of  Henry  I.8 
We  can,  however,  say  no  more  than  that  this  writ  of  Henry  I. 
gives  some  evidence  that  the  county  court  was  used  as  early  as 
this  date  as  the  basis  of  a  local  king's  court  with  a  composition 
similar  to  that  of  the  later  itinerant  justice  court,  and  like  it 
suspending  the  immunities  granted  by  charter  from  attendance 
at  the  ordinary  local  courts.  If  not  the  itinerant  justice  court 
itself,  the  county  court  of  this  writ  is  its  forerunner  and  fur- 
nishes the  foundation  on  which  that  system  was  erected  at  some 
later  date,  perhaps  in  the  same  reign.  As  a  matter  of  proba- 
bility, it  is  likely  that  this  was  occasionally  an  itinerant  justice 
court  from  the  beginning,  and  occasionally  a  sheriff's  king's 
court,  and  that  a  regular  system  of  itinerant  justices  was  reached 
only  gradually.  I  would  not,  however,  insist  too  strongly  on  any 
conclusions  from  a  course  of  reasoning  based  on  so  slight  a  body 
of  material,  and  I  have  endeavoured  throughout  to  suggest  rather 
than  to  affirm,  but  the  problem  which  this  material  presents  is 
an  interesting  one  and  deserving  of  attention,  when  the  scanty 
sources  for  our  knowledge  of  the  judicial  organization  under 
Henry  I.  are  studied. 

8  See  Stubbs,  I.  420,  n.  1,  and  Liebermann,  Leges  Edwardi  Confessorit, 
p.  73. 


[384] 


APPENDIX   III 

LONDON   AND   THE    COMMUNE* 

* 

THE  word  "commune,"  as  is  well  known,  was  used  in  the  Middle 
Ages,  like  many  words  in  the  feudal  vocabulary,  both  in  a  vague, 
popular  sense  and  in  one  strictly  defined  and  technical.  In  the 
former  sense  it  might  be  applied  to  any  union  of  citizens  for  the 
purpose  of  securing  freer  conditions  of  local  government;  in  the 
latter  it  was  applied  only  to  a  town  that  was  formally  consti- 
tuted in  its  corporate  capacity  a  feudal  person,  a  vassal  of  its 
lord,  a  lord  perhaps  of  other  vassals,  with  the  rights,  obliga- 
tions, and  freedom  of  that  station  in  the  feudal  society,  a 
seigneurie  collective  populaire,  as  it  has  been  termed  by 
Luchaire.2  That  London  was  called  a  commune  in  the  former 
sense  has  long  been  known.3  The  most  interesting  of  the  early 
instances  of  the  fact  is  the  passage  in  William  of  Malmesbury, 
where,  in  recording  the  events  of  1141,  he  mentions  omnes 
barones  qui  in  eorum  communionem  iamdudum  recepti  fuerant.4 
The  question  whether  London  was  ever  a  commune  in  the  stricter 
sense  has  been  raised  by  Mr.  J.  H.  Round  in  connexion  with  the 
events  that  occurred  there  in  11 91  and  the  light  thrown  on  them 
by  two  documents  of  a  little  later  date  which  he  has  printed  for 
the  first  time.5  The  language  of  the  chroniclers  in  describing 
the  occurrences  of  11 91  clearly  indicates  that  with  reference  to  a 
commune  of  London  something  unusual  was  done,  some  step  was 
taken  that  had  never  before  been  taken.6  The  language  of 

1  From  the  English  Historical  Review,  vol.  XIX.  702-706. 

2  Communes  Francoises,  p.  97. 

3  Stubbs,  Const.  Hist.,  I.  407,  first  ed. 
tHist.  Nov.,  c.  495. 

5  The  Commune  of  London,  and  other  Studies   (1899),  pp.  219  5. 

6  The  passages  of  chief  importance  are  these:  "Johannes  comes   f rater 
regis   et  archiepiscopus   Rothomagensis,   et  omnes   episcopi,  comites,   et 

[385] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

Richard  of  Devizes  admits  of  no  other  interpretation,  and,  while 
it  is  perhaps  possible  that  he  might  have  used  the  same  language 
of  a  concession  of  local  independence  to  London  which  would 
fall  considerably  below  a  strict  commune,  the  reference  to 
Richard  and  Henry  and  the  mention  of  the  oath  taken  to  the 
commune  by  John,  who  probably  assumed  to  be  acting  for  the 
crown,  make  such  an  interpretation  unlikely.  The  most  natural 
supposition  is  that  John  granted  to  London  the  position  of  a 
crown  vassal  with  all  the  privileges  which  that  would  carry  with 
it.  As,  however,  this  interpretation  of  the  language  of  Richard 
of  Devizes  is  not  beyond  question,  and  as  our  evidence  from  the 
following  period  leaves  the  status  of  the  city  somewhat  in  doubt, 
it  is  worth  while  to  analyze  such  evidence  as  we  have  to  see  if 
the  doubt  can  be  removed. 

1.  In  1894  in  his  Leges  Anglorum,  Dr.  Liebermann  called 
attention  to  the  fact  that  Addit.  MS.  14252  of  the  British 
Museum  gave  evidence  of  the  existence  of  a  mayor  and  skivini 
in  London  under  Richard  and  John.7  The  documents  which 
embody  this  evidence,  important  in  themselves,  are  those  referred 
to  above  as  published  by  Mr.  Round  in  his  Commune  of  London. 
Mr.  Round's  essay  seems  to  imply  that  he  regarded  the  con- 
clusive proof  that  he  presented  of  the  existence  of  these  officers 
in  London  as  equally  proof  of  the  establishment  of  a  commune 
by  the  act  of  1191  as  something  different  from  the  earlier  com- 
mune in  the  vague  sense,  but  it  is  certain,  I  think,  that  neither 
mayor  nor  sMvini  were  officers  typical  of  the  commune  in  the 
technical  sense.  They  existed  in  towns  not  recognized  as  legally 

barones  regni  qui  aderant,  concesserunt  civibus  Londoniarum  communam 
suam,  et  juraverunt  quod  ipsi  earn  et  dignitates  civitatis  Londoniarum 
custodirent  illibatas,  quamdiu  regi  placuerit"  (Oesta,  II.  214). 

"Concessa  est  ipsa  die  et  instituta  communia  Londoniensium,  in  quam 
universi  regni  magnates  et  ipsi  etiam  ipsius  provinciae  episcopi  jurare 
coguntur.  Nunc  primum  in  indulta  sibi  conjuratione  regno  regem  deesse 
cognovit  Londonia,  quam  nee  rex  ipse  Ricardus,  nee  predecessor  et  pater 
ejus  Henricus,  pro  mille  millibus  marcarum  argenti  fieri  permisisset" 
(Richard  of  Devizes,  Chronicles  of  Stephen,  etc.,  III.  416). 
f  Leges  Angl.,  pp.  18  and  83. 

[386] 


APPENDIX 

communes.8  And  while  the  interesting  evidence  that  Mr.  Round 
presented  in  the  same  essay  of  the  derivation  of  the  London 
organization  from  Rouen  makes  the  existence  of  a  commune 
more  likely  it  is  not  conclusive.  Both  Rouen  itself  and  the  towns 
that  adopted  its  institutions  were  imperfect  communes,  allowing 
unusual  powers  to  the  suzerain,9  and  it  is  quite  possible  that 
London  might  have  borrowed  these  officers  from  Rouen  without 
objection  from  the  king  and  without  obtaining  therewith 
recognition  as  a  crown  vassal. 

2.  If  John,  even  as  representing  the  crown,  granted  a  com- 
mune to  London  in  the  strict  sense,  it  is  by  no  means  certain 
that  Richard  on  his  return  would  have  felt  himself  bound  by  that 
grant.    No  act  of  royal  prerogative  is  more  common  in  the  feudal 
age  than  the  disavowal  and  revoking  by  one  king  of  his  pred- 
ecessor's  grants   from  the  crown  domain,  at  least  when  these 
have  been  made  under  circumstances  which  put  the  crown  at  a 
disadvantage,  and  the  grant  of  a  commune  to  London,  legally 
considered,   would   be   a   grant   from  the   crown   domain.      The 
words  of  Richard  of  Devizes  seem  like  a  well-informed  judg- 
ment of  what  Richard's  attitude  in  the  matter  would  be,  and  our 
general  knowledge  of  that  king's  character  makes  it  seem  unlikely 
that    he    would    have    hesitated    to    refuse    his    sanction   to    his 
brother's  act. 

3.  This    supposition    receives    some    confirmation    from    the 
absence  of  all  reference  to  a  commune  in  the  charter  of  Richard 
to  the  city  of  23  April,  11Q4,10  as  well  as  from  the  use  of  the 
ordinary  form  of  expression  pro  libertatibus  suis  conservandis 
in  the  entry  in  the  Pipe  Roll  of  11Q5,11  where  the  Londoners' 
payment  of  1000  pounds  to  the  king  is  recorded.     The  conclu- 
sion is  fairly  certain  that  Richard  recognized  no  commune,  for 

8Luchaire,  Communes,  p.  176;  Manuel  des  Institutions  Francoises,  pp. 

404-405. 

9  Luchaire,  Manuel,  p.  402,  n.  1 ;  Communes,  p.  102. 

1°  Liber  Custumarum,  p.  248. 

n  Commune  of  London,  p.  234;  cf.  Madox,  I.  473,  n.  t  (p.  327,  n.  t,  ed. 

1711). 

[387] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

it  is  hardly  possible  to  suppose  that  a  relationship  to  the  crown 
so  exceptional  so  far  as  English  towns  are  concerned,  would 
have  escaped  some  kind  of  notice  had  it  existed.  In  line  with 
this  are  John's  charter  of  confirmation  of  17  June,  11 99,^  and 
his  grant  of  the  shrievalty  to  the  citizens  on  5  July  of  the  same 
year.13  The  citizens  might  indeed  have  wished  to  buy  the 
shrievalty  even  if  they  had  had  a  commune,  for,  embracing  the 
county  of  Middlesex,  it  would  be  wider  than  the  commune;  but 
it  may  rightly  excite  suspicion  because,  with  a  commune  in  the 
strict  sense,  their  interest  in  the  shrievalty  would  be  greatly 
reduced. 

4.  From   1215   comes  a  piece  of  evidence  interesting  in  the 
suggestion    it   makes    but    exasperating    in    its    incompleteness.14 
In  the  charter  of  9  May,  which  John  issued  to  the  city  as  his 
trouble  with  the  barons  was  approaching  a  crisis,  the  mayor  is 
required  to  swear  allegiance  to  the  king.      If  we  had  a  record 
of  the  form  of  oath  to  be  taken  by  the  mayor  under  this  charter, 
it  is  quite  likely  that  our  problem  would  be  solved,  so  far  at  least 
as   this   particular   date   is   concerned.      If  he   took   an   oath   of 
fealty  to  the  king  in  the  name  of  the  city,  and  as  representing 
it  in  its  vassal  capacity,  London  was  a  commune;  if  he  took  it 
merely  as  an  officer  of  the  city,  the  same  oath  which  other  officers 
took  at  the  same  time,  it  was  not.     The  language  of  the  charter 
looks  like  the  former  case,  and  suggests  that  the  king  may  be 
tempting  the  city  with  the  hope  of  a  restoration  of  the  commune 
to  which  he  had  once  sworn,  but  not  so  clearly  as  to  exclude  the 
other  possibility. 

5.  Clause  12  of  Magna  Carta  has  the  appearance  of  deciding 
the  question.     London  is  there  classed  with  the  crown  vassals, 
and  its  tax  payments  are  called  auxilia.     A  comparison  of  this 
clause  with  clause  32  of  the  Articles  of  the  Barons  shows,  I  think 
with  great  probability,  that  this  exact  point  was  clearly  in  mind 
and    that    the    language    was    used   intentionally.      The    earlier 

12  Rymer,  I.  p.  76;  cf.  charter  of  Henry  III.,  Lib.  Custumarvm,  p.  45. 
Ulbid.,  p.  249;  cf.  E.  H.  R.,  XVII.  508. 
r*See  Miss  Bateson  in  E.  H.  R.,  XVII.  726. 

[388] 


APPENDIX 

article  says:  Simili  modo  fiat  de  taillagiis  et  auxiliis  de  civitate 
Londoniarum,  et  de  aliis  civitatibus  quae  inde  habent  libertates — 
evidently  a  careless  phrase  and  an  extension  of  the  privilege 
that  could  be  justified  legally  by  no  precedents  in  favour  of  the 
towns  included.  To  have  inserted  it  in  the  final  charter  would 
have  been  to  demand  a  large  concession  from  the  crown,  and  to 
demand  new  grants  is  not  in  the  general  spirit  of  Magna  Carta. 
The  demand  for  London  might  be  justified  if  John  himself  had 
once  sworn  to  its  commune,  but  there  were  no  grounds  on  which 
it  could  be  claimed  for  any  other  town.  As  Magna  Carta  in  gen- 
eral, and  in  comparison  with  the  Articles  of  the  Barons,  is  a 
carefully  drawn  document,  this  explanation  of  the  difference 
between  the  two  clauses  is  not  improbable.  It  seems  possible  then 
to  conclude  that  in  clause  12  of  Magna  Carta  the  crown,  in 
indirect  terms  at  least,  recognized  London  as  a  commune  in  the 
strict  sense.15 

6.  The  first  piece  of  evidence  that  is  conclusive  comes  to  us 
from  the  reign  of  Henry  III.  and  from  his  thirty-ninth  year. 
In  that  year,  according  to  the  record  of  the  case  then  made,16 
the  king  by  order  of  the  council  ordered  a  tallage  of  his  domains 
to  meet  the  expenses  of  his  campaign  abroad.  As  a  part  of  the 
domain  the  citizens  of  London  were  summoned  before  the  king 
and  council  and  informed  that  3000  marks  was  asked  of  them, 
nomine  tallagii.  The  mayor  and  others  who  had  appeared  for 
the  city  took  counsel  together  and  offered  2000  nomine  auxilii, 
and  declared  flatly  (prcecise)  that  they  could  not  and  would  not 
give  more.  Then  the  king  sent  his  treasurer  and  others  of  the 
council  to  London  to  receive  the  sum  demanded,  with  instructions, 
if  the  city  would  not  pay  it,  to  assess  it  themselves  upon  the 
citizens  individually ;  but  the  king's  messengers  found  not  merely 

15  A  grant  of  freedom  from  tallage  merely  would  not  be  equivalent  to 
the  grant  of  a  commune,  nor  evidence  of  its  existence.  Clause  12,  how- 
ever, seems  clearly  to  class  London  with  the  vassals  of  the  crown,  and 
the  payment  of  auxilia  seems  to  be  claimed  as  a  right  rather  than  asked 
as  a  concession. 
iSMadox,  Exchequer,  1.  712,  n.  a  (p.  491,  n.  a,  ed.  1711). 

[389] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

that  the  city  refused  to  pay  the  tax,  but  that  the  citizens  refused 
to  take  the  oaths  demanded  of  them  to  fix  the  assessments  of  one 
another,  and  they  had  to  go  away  infecto  negotio  illo.  Then  the 
matter  came  before  the  king's  council  at  Westminster  on  the  issue 
of  fact  created  by  the  claim  of  the  city.  Et  cum  contencio  esset, 
utrum  hoc  dici  deberet  tallagium  vel  auxilium,  rex  scrutari  fecit 
rotulos  suos,  utrum  ipsi  aliquid  dederunt  regi  vel  antecessoribus 
suis  nomine  tallagii.  Et  scrutatis  rotulis  compertum  est  tarn  in 
rotulis  de  scaccar-io  quam  de  Cancellaria  that  in  the  16th  of  John 
and  in  the  7th,  26th,  and  37th  of  Henry  III.  the  city  had  been 
tallaged  and  had  paid  the  tax.  That  settled  the  case.  Postea  in 
crastino  venerunt  prsedicti  Radulfus  maior  et  cives  et  recogno- 
verunt  se  esse  talliabiles,  et  dederunt  regi  tria  millia  marcaram 
pro  tallagio.  Now  both  tallagium  and  auxilium  are  words  used 
in  a  vague  as  well  as  in  a  technical  sense,  but  it  is  not  possible 
to  suppose  that  anything  but  the  strict  technical  distinction 
between  them  is  here  meant  by  the  claim  which  London  advances. 
The  city  asserts  that  it  is  not  a  part  of  the  king's  domain,  that 
it  should  pay  auxilia,  like  a  vassal,  and  not  tallagia,  like  a  villain. 
The  precedents  are  examined;  they  prove  to  be  clearly  against 
the  city — if  the  council  had  had  a  copy  of  Madox's  Exchequer 
they  could  have  increased  the  number; — and  the  city  is  obliged 
to  withdraw  its  claim  and  to  confess  itself  a  domain  town.  The 
bearing  of  the  case  is  so  clear,  indeed,  that  we  cannot  believe 
that  the  crown  as  such  had  ever  recognized  London  as  a  true 
commune,  not  even  as  a  consequence  of  the  act  of  John  in  1191, 
or  that  the  claim  of  London  in  Magna  Carta  had  been  made  good. 
In  view  of  all  the  evidence,  I  am  inclined  to  suggest  these 
conclusions:  John  in  1191,  assuming  to  represent  the  crown, 
granted  to  London  a  commune  in  the  legal  sense  and  under  this 
arrangement  the  mayor  and  skivini  constitution  was  introduced. 
Richard,  on  his  return,  refused  to  confirm  this  grant,  though  this 
refusal  did  not  modify  the  city's  constitution,  and  John  as  king 
continued  Richard's  policy.  In  1215  he  needed  the  city's  sup- 
port and  bid  for  it  with  the  charter  of  9  May,  in  which  it  is  pos- 
sible, though  only  barely  possible,  that  he  meant  to  hold  out  the 

[390] 


APPENDIX 

prospect  of  a  re-establishment  of  the  commune.  In  Magna  Carta 
a  few  weeks  later  the  city  put  forward  its  own  programme,  with 
the  support  of  the  barons  asserted  its  legal  right  to  the  commune, 
and  compelled  the  king  to  recognize  it,  hoping  in  this  way  to 
establish  it.  On  the  reissue  of  the  charter  after  the  death  of 
John,  clause  12  was  omitted  and  with  it  London's  legal  right  to 
a  commune  fell  to  the  ground.17 

In18  one  of  the  supplementary  studies  appended  to  his  trans- 
lation of  Stubbs's  Constitutional  History,19  M.  Petit-Dutaillis  has 
published  a  criticism  of  the  views  expressed  above.  His  argu- 
ment against  my  suggestions  is  founded  on  the  generally  vague 
and  untechnical  use  of  terms  in  the  feudal  age.  On  this  point, 
I  quite  agree  with  my  critic.  A  tallage  proper  is  called  a  tallage, 
an  aid,  a  donum,  or  an  assize.  An  aid  proper  is  not  so  often  called 
by  another  name  in  the  documents,  still  it  is  occasionally  referred 
to  as  a  scutage,  or  a  donum,  and  by  the  chroniclers  is  even  called 
a  tallage.20  So  general  is  this  indefiniteness  of  usage  that  I  doubt 
if  we  are  justified  in  assuming  a  technical  meaning  for  any  such 
term  unless  we  can  show  from  the  context  or  from  the  facts  of 
the  case  that  it  is  so  used.  But  in  studying  feudal  documents  it 
is  important  to  bear  in  mind  that  though  the  men  of  that  age 
often  used  their  terms  untechnically,  they  did  not  confuse  their 

17  Possibly  the  reference  to  London,  along  with  that  to  scutage,  was  one 
of  the  dubitabilia  said  in  the  reissue  of  1217  to  have  led  to  the  omission 
of  that  clause.     We  must  regard  its  insertion  in  the  clause,  I  think,  as 
an  assertion  of  London's  claim  and  programme,  and  not  of  a  legal  right 
that  the  crown  was  likely  to  admit. 

18  The  following  is  from  a  supplementary  note  in  the  English  Historical 
Review,  vol.  XXIV.  490-495. 

19  Paris,  1907,  pp.  846-860 ;  in  the  English  translation  of  these  Studies  by 
Mr.  W.  E.  Rhodes  (1908),  pp.  91-106.    References  are  here  given  to  the 
translation. 

20  Dominus  Henricus  rex  Angliae  accepit  tallagium  per  Angliam,  tarn  a 
comitibus  quam  a  baronibus,  militibus,  viris  religiosis  civibus  et  burgen- 
sibus:  Ann.  Monast.,  I.  97.     This  aid  of  1235  to  marry  the  king's  sister 
is  called  in  the  king's  writ  both  an  auxilium  and  a  scutage,  Stubbs,  S.  C., 
p.  364;  and  by  Matthew  Paris  a  carucage,  III.  327,  and  a  scutage,  IV. 
186.    An  aid  is  called  a  tallage  in  Bracton's  2V.  B.,  case  895. 

[391] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

facts.  When  they  were  calling  a  tallage  proper  an  aid,  they 
knew  the  difference  between  the  two  things,  and  distinguished 
them  sharply,  or  used  their  language  technically,  if  the  need 
arose.21  In  the  present  case  opinion  must,  I  think,  be  determined 
by  the  question  whether  auxilium  in  c.  12  and  in  the  document  of 
1255  is  used  technically  or  not.  My  contention  is  that  in  1255 
at  least  that  is  what  was  intended,  and  that  this  fact  lends  sup- 
port to  such  an  interpretation  of  c.  12. 

M.  Petit-Dutaillis  supposes  that  I  overlooked  the  following 
passage  in  the  Dialogus  de  Scaccario  in  which  he  believes  the 
word  auxilium,  in  the  case  of  the  second  alternative,  to  be  used 
in  the  same  sense  as  by  the  Londoners  in  1254.  The  passage  is:22 

Noveris  itaque  quod  plurimum  interest  si  donum,  vel  auxilium, 
civitatis  per  singula  capita  commorantium  in  ea  a  iustitiis  con- 
stituatur,  vel  si  cives  summam  aliquam,  que  principe  digna  vi- 
deatur,  iustitiariis  offerant  et  ab  eis  suscipiatur.  Dispar  enim 
in  hiis  duobus  modus  est  cohercionis.  Si  enim  per  singulos  a 
iudicibus  constitutum  est  donum  et  quilibet  eorum  solvendo  non 
fuerit,  lex  predicta  de  civibus  non  solventibus  servatur,  ut  scilicet 
domibus  et  redditibus  usque  ad  solutionem  privetur.  At  si  dictum 
est  a  civibus  "Dabimus  regi  mille"  et  hec  summa  digna  suscipi 
judicetur,  ut  statutis  terminis  eadem  exurgat,  ipsi  provideant. 

I  will  confess  that  the  support  which  this  passage  gives  to  my 
interpretation  of  the  document  of  1255  seemed  to  me  so  obvious 
that  I  did  not  think  it  necessary  to  point  it  out.  But  I  will  now 

21  Villata  de  Wicumba  debet  xx  I  et  viii  d  de  taillagio.    Sed  consideratum 
est  per  iusticiarium  et  barones,  quod  manerium  illud  non  debet  tailliari, 
quia  inde  facit  Alanus  Basset  servitium  militare,  sicut  continetur  in  carta 
ipsius:  Pipe  Roll,  1  John,  Madox,  I.  74.5,  n.  6  [p.  513,  ed.  1711],    See  the 
claim  of  the  Banaster  Welshmen,  Shirley,  Royal  Letters,  I.  349.     Brae- 
ton's  N.  B.,  case   1005,  distinguishes  the  two,  though  both  are  called 
auxilium.     The  distinction  in  the  matter  of  consent  is  clearly  drawn  in 
the  two  writs  in  favour  of  Richard  of  Cornwall,  dated  29  October,  1259, 
Rymer,  I.  391.     Bracton  has  naturally  little  to  say  of  tallage,  but  he 
marks  it  off  sharply  from  the  aid;  cf.  ff.  26  and  36  b  [ed.  Twiss,  I.  206 
and   286-288].      The    prelates    distinguished    clearly    enough    between    a 
scutage  and  an  aid  in  1229,  Madox,  I.  607,  n.  z  [p.  422,  ed.  1711].     See 
also  ibid.,  I.  673  [p.  467,  ed.  1711]. 

22  Dialogus,  II.  13,  ed.  Hughes,  Crump,  and  Johnson,  p.  145. 

[392] 


APPENDIX 

analyze  the  passage  with  care.  The  author  of  the  Dialogus  calls 
the  payment  of  which  he  is  speaking  donum  or  auxilium  civitatis. 
In  regard  to  it  he  describes  two  processes  which  are  alternatives 
of  one  another.  In  the  first,  the  so-called  auxilium  is  clearly 
assessed  per  capita  upon  the  inhabitants  of  the  town  by  the 
king's  justices.  It  needs  no  argument  to  show,  nor  do  I  think 
any  one  would  doubt,  that  this  is  the  tallage  proper  as  opposed 
to  the  auxilium  proper :  that  is,  to  the  voluntary  aid  of  the  feudally 
free  man.  The  question  concerns  the  other  alternative,  Does  it 
make  a  difference  in  the  nature  of  the  tax?  Now  it  is  plain  from 
the  passage  quoted,  and  from  the  tenor  of  the  whole  chapter  in 
which  it  occurs,  that  the  author  is  mainly  interested  here  in 
methods  of  distraint  for  non-payment.  He  says  that  the  method 
of  distraint  is  different  according  as  one  or  the  other  alternative 
is  used  in  what  he  calls  alike  in  both  cases  the  auxilium  civitatis. 
He  describes  the  alternatives  merely  to  make  clear  the  methods 
of  distraint;  he  is  not  concerned  at  all  to  explain  their  effect  on 
the  nature  of  the  tax.  We  are  compelled  therefore  to  reach  our 
own  conclusions  on  that  subject  by  inference.  The  second  alter- 
native is  that  the  citizens  offer  the  justices  a  lump  sum  and,  if 
the  offer  seems  to  them  worthy  of  the  prince,  that  is,  sufficient 
for  the  occasion,  they  accept  it  and  the  citizens  themselves  be- 
come responsible  for  the  payment  at  the  appointed  terms.  What 
is  it  that  the  citizens  buy  by  their  offer?  What  change  do  they 
make  by  it  in  the  process  of  the  first  alternative?  It  seems  to 
me  clear  that  they  buy  off  the  assessment  per  capita  with  the 
resulting  method  of  distraint,  and  that  only.  It  is  not  the  arbi- 
trary fixing  of  the  tax.  They  do  not  determine  the  sum  to  be 
paid.  If  the  offer  does  not  seem  to  the  justices  large  enough,  the 
citizens  must  raise  it  until  the  sum  is  judged  to  be  a  fair  equiva- 
lent for  what  would  be  obtained  from  an  assessment  per  capita. 
But  it  may  be  said  that  the  payment  of  the  citizens  in  this  second 
case  is  voluntary,  and  that  I  understand  to  be  the  interpretation 
on  which  M.  Petit-Dutaillis  bases  his  reasoning.  Something  is 
voluntary  certainly,  but  is  it  the  fact  of  payment?  If  the  citizens 
refuse  to  pay  a  lump  sum,  will  the  king  receive  nothing,  as  would 

[393] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

be  the  case  in  the  auxilium  proper?  Certainly  not.  In  that  case 
recourse  is  had  to  the  first  alternative  and  the  assessment  is  made 
per  capite,  as  in  the  passages  quoted  below  from  the  document 
of  1255.  All  that  is  left  to  the  decision  of  the  citizens  is  whether 
they  will  buy  off  the  assessment  per  capita  or  not.  In  technical 
terms  this  is  the  process  of  the  "fine."  The  citizens  "fine  with 
the  king"  for  the  privilege  of  making  their  own  assessment.  The 
subject  could  fine  with  the  king  for  an  alleviation  in  the  process 
or  incidence  of  practically  any  right  or  privilege  of  the  king,  but 
such  a  fine  made  no  change  in  the  character  of  the  king's  right 
or  of  the  subject's  obligation.23 

Now  in  the  document  of  1255,  the  alternatives  which  the  king 
offers  the  Londoners  are  the  alternatives  of  the  Dialogus.  This 
is  the  passage:24 

23 Thus:  Mandatum  est  assessoribus  tallagii  in  comitatu  Oxoniae,  quod  si 
burgenses  Oxoniae,  qui  offerunt  eis  ad  opus  regis  C  m  pro  tallagio  villae 
suae,  dare  voluerint  C  I  pro  tallagio  burgi  et  suburbii  Oxoniae  inde  sint 
content!  pro  tallagio  illo:  Fine  Roll  18,  Henry  III.,  Madox,  Exchequer, 
I.  743,  n.  p.  [p.  511,  ed.  1711].  Homines  Wintonae  r  c  de  cccc  m  de  fine 
suo  quern  fecerunt  pro  dccc  m,  quas  S.  de  Turneham  lalliaverat  super 
eos:  Pipe  Roll  4,  John,  ibid.  n.  m.  The  following  shows  what  it  is  that 
the  burgesses  purchase,  and  what  the  word  auxilium  means:  Homines 
de  Hornecastra  r  c  de  xxix  I  et  xiii  *  et  iiii  d  de  auxilio  eiusdem  villas, 
quod  ipsi  assederunt  inter  se  concessu  iusticiarum  aliter  quam  iusticiae: 
Pipe  Roll  14,  Henry  II.,  Madox,  I.  585,  n.  w  [p.  407,  ed.  1711];  see  also 
n.  «.  The  difference  in  the  process  of  distraint  is  illustrated  by  the 
quotation  ibid.,  I.  740,  n.  d  [p.  509,  ed.  1711].  The  phrase  "offerunt  pro 
tallagio"  is  strictly  correct.  In  full  it  would  read  "offerunt  finem  pro 
tallagio."  It  does  not  mean  that  a  tax  different  in  principle,  but  that  a 
fine  is  offered  for  the  tallage.  In  the  document  of  1255,  it  was  because 
the  citizens  of  London  recognized  themselves  as  tallageable  that  they 
gave  the  king  3000  marks  for  the  tallage.  Instead  of  "pro  tallagio  illo" 
as  above  we  have  in  some  documents,  as  in  one  of  those  quoted  in  1255, 
"pro  tallagio  ea"  or  "hac  vice,"  which  means  that  no  precedent  was 
established  and  no  change  made  in  rights  or  obligations.  The  evidence 
is  so  conclusive  that  it  is  impossible  to  consider  the  passage  in  the 
Dialogus  as  referring  in  either  of  the  alternatives  described  to  any  form 
of  taxation  but  the  tallage. 
M  Madox,  I.  712,  n.  a.  It  will  be  noticed  that  what  the  king  offers  is 

[394] 


APPENDIX 

Et  tune  rex  de  consilio  suo  misit  Philippum  Lovell  thesaurarium 
suum,  Henricum  de  Bathonia,  Petrum  de  Rivalle,  Rogerum  de 
Thurkelby,  et  Edwardum  de  Westminstre,  apud  Sanctum  Mar- 
tinum  ad  recipiendum  finem  trium  millium  marcarum  pro  tallagio, 
si  intrare  vellent  sicut  eis  prius  dictum  fuit;  et  si  nollent,  tune 
assiderent  tallagium  illud  in  civitate  per  capita. 

These  are  clearly  the  alternatives  described  in  the  Dialogus  and 
they  do  not  affect  the  kind  of  tax,  but  the  method  of  assessment. 
But  this  is  not  what  the  Londoners  desire.  They  wish  a  different 
kind  of  tax;  they  do  not  recognize  either  alternative  as  their 
auxilium,  and  on  their  right  to  pay  this  they  stand. 

Et  cum  praedicti  cives  noluissent  intrare  finem  praedictarum 
trium  millium  marcarum,  praedicti  thesaurarius  et  alii  voluerunt 
assidere  illud  tallagium  per  capita,  et  quod  quilibet  iuraret  catalla 
alterius.  Et  cum  ipsi  noluissent  facere  sacramentum,  nee  etiam 
dicere  in  fide  qua  regi  tenebantur  de  catallis  singulorum,  dicti 
thesaurarius  et  alii  inde  recesserunt  infecto  negotio  illo.  Postea 
venerunt  praedicti  cives  coram  rege  apud  Westmonasterium  die 
Dominica  proxima  post  Purificationem  B.  Mariae  Virginis  anno 
praedicto  et  coram  consilio  suo  .  .  .  .  Et  cum  contencio  esset, 
utrum  hoc  dici  deberet  tallagium  vel  auxilium,  rex  scrutari  fecit 
rotulos  suos,  utrum  ipsi  aliquid  dederunt  regi  vel  antecessoribus 
suis  nomine  tallagii. 

That  they  are  drawing  the  technical  distinction  here  seems  to  me 
to  admit  of  no  question.  M.  Petit-Dutaillis  says  it  is  because  they 
wished  to  fix  the  amount  of  their  tax  themselves.  Of  that  I  have 
no  doubt;  but  that  is  the  technical  auxilium,  not  the  auxilium 
civitatis  of  the  Dialogus.  The  Londoners  join  issue  squarely 
between  both  the  alternatives  of  the  Dialogus  on  one  side,  and  the 
auxilium  to  which  they  lay  claim  on  the  other.  This  is  also  clear 
in  the  result  of  the  case,  which  seems  almost  like  a  law  suit.  The 
records  are  searched.  Four  cases  are  produced.  In  two  of  these 
the  Londoners  talliati  fueruntj  in  two  dederunt  pro  tallagio:2* 

called  a  fine.  I  believe  the  language  of  this  document  throughout  to  be 
strictly  and  carefully  technical. 

25  That  is,  dederunt  finem  pro  tallagio.  That  this  is  the  proper  reading 
in  that  one  of  the  four  cases  taken  from  26  Henry  III.  is  certain.  Under 
the  date  of  12  March  of  that  year  a  mandate  was  issued  to  "the  barons 

[395] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

the  alternatives  of  the  Dialogus  again,  and  those  of  the  king. 
In  view  of  these  four  cases,  not  of  the  first  two  alone,  the  Lon- 
doners abandon  their  claim  and  acknowledge  themselves  tallage- 
able. 

M.  Petit-Dutaillis  says  that  the  object  of  the  Londoners  was 
to  get  rid  of  the  liability  to  arbitrary  taxation  fixed  by  the  king, 
and  to  be  able  to  determine  the  amount  of  their  payments  them- 
selves. That  this  was  their  programme,  both  in  1215  and  in  1255, 
is  exactly  what  I  assert.26  But  here  arises  the  question  of  law.  I 

of  London  to  deliver  out  of  the  WOOL  whereby  they  made  fine  with  the 
king  for  the  last  tallage,  200m.  to  P.  bishop  of  Hereford,  going  as  the 
king's  envoy  beyond  seas,  for  his  expenses.  And  the  king  sends  to  them 
his  writ  of  computate  for  the  said  sum  to  the  barons  of  the  Exchequer"! 
Cat.  of  Pat.  Rolls,  1242,  p.  275.  Later  in  the  same  year  the  following 
record  was  entered  on  the  Pipe  Roll:  "Gives  Londoniae  reddunt  compotum 
de  1000/.  pro  taillagio  hac  vice  sicut  continetur  in  original!  xxv.  In 
thesauro  dccclxvi  /,  i  m.  Et  Petro  Hereford'  Episcopo  ad  expensas  suas 
ad  partes  transmarinas  ducentas  marcas  per  breve  regis.  Et  quieti  sunt. 
26  Henry  III.,  Lond.  et  Midd.,  Tit  Nova  Oblata."  For  this  quotation  I 
am  indebted  to  Dr.  S.  K.  Mitchell.  In  view  of  this  documentary 
evidence  the  account  in  Matthew  Paris,  IV.  242,  which  seems  to  describe 
a  tallage  assessed  per  capita  in  1243,  cannot  be  considered  to  refer  to 
this  tallage.  Nor  have  I  found  evidence  of  any  tallage  levied  in  1243. 
The  statement  of  Paris  must  be  considered,  I  think,  rhetorical,  indi- 
cating his  general  feeling  about  the  king's  exactions. 
26  If  the  document  of  nine  articles  discovered  by  Miss  Bateson  (E.  H.  R., 
XVII.  726)  is,  as  she  conjectures  may  be  the  case,  a  statement  of  what 
the  Londoners  would  like,  perhaps  a  petition  to  the  king  before  the 
charter  of  9  May,  1215,  their  programme  is  sufficiently  clear.  C.  3  of 
that  document  reads:  "De  omnibus  taillagiis  delendis  nisi  per  communem 
assensum  regni  et  civitatis."  They  failed  to  get  this  from  John,  how- 
ever. The  charter  of  9  May  represents  the  farthest  that  he  was  willing 
to  go  even  in  bidding  for  their  support.  M.  Petit-Dutaillis  is  wrong  in 
saying  that  c.  12  of  Magna  Carta  is  in  my  opinion  a  restoration  of  the 
commune  by  John  "when  he  had  need  of  the  support  of  the  inhabitants." 
On  the  contrary,  my  suggestion  was  that  the  charter  of  9  May  represents 
John's  bid  for  support,  but  that  c.  12  was  the  programme  of  the  city 
forced  upon  the  king  with  the  help  of  the  barons.  M.  Petit-Dutaillis 
asserts,  p.  105,  that  the  burgesses  show  no  desire  for  the  recognition  of 
the  commune.  "They  asked  for  nothing  of  the  sort  in  the  nine  articles, 
or  in  the  petition  of  the  barons."  I  am  not  sure  that  they  did,  but  if 

[396] 


APPENDIX 

know  of  no  such  right  of  the  tax  payer  recognized  anywhere  in 
the  feudal  law  except  the  technical  aid  of  the  feudally  free  man, 
and  that  was  not  an  altogether  perfect  right.  Nor  do  I  know  of 
any  way  by  which  the  town  ever  reached  that  position,  except 
as  it  became  a  commune,  or,  falling  short  of  that,  made  some 
special  arrangement  with  its  lord  covering  this  point.  Unques- 
tionably, as  a  matter  of  competence,  the  king  could  have  granted 
to  London  an  exemption  from  tallage  and  the  right  to  grant  its 
own  aids,  without  making  it  a  full  commune,  or  indeed  without 
granting  it  any  further  rights.27  But,  however  far  such  an  alter- 
native may  be  carried,  it  has  no  application,  so  far  as  we  now 
know,  to  anything  in  the  London  case.  The  only  incident  to 
which  we  can  refer  their  claim  of  1255  for  any  historical  justifi- 
cation is  the  apparent  recognition  by  John  in  11 91  combined 
with  c.  12  of  Magna  Carta.  If  they  had  any  other  ground  on 
which  to  base  their  claim  to  pay  aids  only,  and  of  their  own 
fixing,  the  evidence  of  it  has  not  come  down  to  us.28  That  the 

either  c.  3  of  the  nine  articles  or  c.  32  of  the  Articuli  Baronum  were 
thrown  into  strictly  legal  statement  we  should  have  what  is  said  in  c.  12. 
In  c.  7  of  the  nine  articles,  which  reads,  "De  maiore  habendo  de  anno  in 
annum,  per  folkesmot,  et  quod  primum  iuret,"  the  last  clause  should 
be  noticed  along  with  my  suggestion  above  in  regard  to  the  oath  pro- 
vided for  in  the  charter  of  9  May.  The  interest  shown  in  what  the  mayor 
was  to  swear  certainly  points  to  an  oath  of  some  not  usual  kind  and 
may  possibly  indicate  the  mayor's  oath  for  the  commune. 
27  In  the  charter  granted  by  Henry  to  Rouen  in  1150,  which  was  prob- 
ably a  confirmation  of  a  grant  of  his  father,  Geoffrey,  in  1144,  c.  13 
reads:  Quod  nee  tailliam  faciam  super  eos  nee  res  eorum  capiam,  nisi 
sua  bona  voluntate  prestare  voluerint  michi.  Giry,  iStablissements  de 
Rouen,  II.  58;  cf.  Round,  Calendar  of  Documents  preserved  in  France, 
p.  33.  As  to  the  date  of  this  charter,  and  the  fact  that  it  does  not  estab- 
lish a  commune,  see  Giry,  I.  25-26. 

281  understand  M.  Petit-Dutaillis  to  mean,  pp.  103-104,  that  the  towns 
were  sub j  ect  sometimes  to  aids  freely  granted  by  themselves  and  at  other 
times  to  tallages.  If  language  is  used  at  all  strictly,  I  do  not  think  this 
can  be  correct.  They  were  no  doubt  constantly  paying  fines  and  tallages, 
in  the  strict  sense  of  these  words,  but  is  there  any  instance  in  which 
they  were  called  on  for  an  aid  which  was  "in  theory  a  gift  made  to  the 
king"?  The  auxilia  of  the  towns  ad  filiam  regis  maritandam  and  ad 

[397] 


ORIGIN  OF  THE  ENGLISH  CONSTITUTION 

Londoners  in  1255  had  in  mind  c.  12  of  Magna  Carta,  or  that 
they  intended  to  claim  a  technical  commune  in  1215,  I  do  not 
affirm;  but  I  think  that  the  two  instances  should  be  considered 
together,  and  in  connexion  with  the  incident  of  1191.  That  c.  12 
was  omitted  from  the  reissues  of  Magna  Carta  and  is  not  referred 
to  in  1255,  I  do  not  admit  to  be  a  matter  of  importance.29  But 
it  seems  strange  that  the  Londoners  should  allow  so  long  a  time 
as  the  forty  years  between  1215  and  1255  to  go  by,  during  which 
they  submit  to  so  many  tallages,  only  to  raise  the  point  after  a 
whole  generation  has  elapsed.30  If  we  could  show  a  peculiar 
opportunity  in  1255  which  did  not  exist  at  an  earlier  date,  the 
difficulty  might  be  reduced. 

regis  redemptionem  which  appear  in  the  Pipe  Rolls  are  really  tallages, 
on  the  well-known  principle  that  when  a  feudal  aid  or  scutage  is  received 
from  the  military  tenants  a  tallage  is  taken  from  the  demesnes.  See 
Madox,  I.  634,  n.  q  [p.  441,  ed.  1711],  extracts  from  the  Pipe  Roll  of  33 
Henry  II.,  which  are  also  interesting  because  of  the  clearness  with  which 
they  show  that  donum  and  tallagium  were  interchangeable  terms.  If 
c.  12  of  Magna  Carta  means  what  it  says,  and  if  London  were  in  fact 
put  into  the  position  it  describes,  then,  whether  its  previous  payments 
are  to  be  called  aids  or  tallages,  it  would  be  put,  so  far  forth,  into  the 
position  of  a  crown  vassal,  for  its  free  grants  to  the  crown,  if  it  had 
made  any  that  were  not  fines,  had  surely  not  been  made  per  commune 
consilium.  The  statement  in  p.  103,  n.  1,  that  the  Londoners  "had  just 
paid  in  the  year  1214-1215  a  tallage  of  2000  marks"  is  not  quite  accu- 
rate. The  tallage  had  been  laid  in  that  year  (talliati  fuerunt),  but  the 
Pipe  Roll  of  6  Henry  III.,  shows  that  it  was  not  paid  until  some  years 
later.  (Quoted  in  Madox,  I.  388,  n.  /  [p.  267,  ed.  1711]). 

29  The  legal  case  as  a  whole  was  naturally  not  entered  in  the  Memoranda 
roll  from  which  Madox  quotes,  but  only  such  parts  of  it  as  might  be 
thought  necessary  for  reference.     The  continued  remembrance  of  the 
omitted  clauses  of  Magna  Carta  is  too  large  a  subject  to  be  entered  upon 
here,  but  evidence  of  it  is  certainly  not  lacking. 

30  If  we  can  trust  Matthew  Paris,  the  interval  is  not  quite  so  long.  Under 
1241   (IV.  95),  he  says:  "Nee  multum  post,  cives  Londonienses  contra 
consuetudinem  et  libertatem  civitatis,  quasi  servi  ultimae  conditionis  non 
sub  nomine  aut  titulo  liberi  adiutorii,  sed  tallagii,  quod  multum  eos 
angebat,  regi,  licet  inviti  et  renitentes,  numerare  sunt  coacti."     This 
seems  to  draw  the  issue  sharply  and  can  hardly  be  all  rhetoric  like  the 
servi  ultima  conditionis.     It  may  have  been  written   after  1255,   and 

[398] 


APPENDIX 

wrongly  dated  by  Paris,  but  the  printed  text  gives  no  evidence  of  this. 
For  study  of  this  passage,  compare  III.  381;  IV.  182,  242,  395,  511; 
V.  50,  333,  486,  536,  568.  It  was  the  tallage  of  1241  for  which  the  Lon- 
doners fined  in  1242. 


[399] 


INDEX 


ADMINISTRATIVE  system,  super- 
vised by  curia  regis,  69,  374  n.; 
by  the  itinerant  justices,  132  ff., 
145  f. 

Advocatus,  the,  245,  259. 

Afforcement  of  a  court,  197  f. 

Aid,  the  feudal.    See  Auxilium. 

Allegiance,  Norman  reservation  of, 
98,  105,  186  ff. 

Amalric  I.,  his  assise  sur  la  Ligece, 
105. 

American  constitutions,  relation  to 
the  English,  41  f. 

Anglo-Norman  institutions,  changes 
of  the  first  century,  107  f.;  ef- 
fect of  changes  under  Henry  II., 
134  f.,  144  ff. 

Anselm,  Archbishop,  70;  trial  at 
Rockingham,  23  n.,  68,  171  n. 

Arms,  Assize  of,  191. 

Articles  of  the  Barons,  223,  225, 
245,  256  ff.,  262. 

Assembly,      national,      Saxon,      6; 
Frankish,  10;  in  Normandy,  12. 
See  Curia  regis;  Witenagemot. 

Assise  sur  la  Ligece,  the,  105. 

Assizes,  the  possessory,  126  f., 
232  f.;  the  grand  assize,  127. 

See  Clarendon;  Northampton; 
Utrum. 

Auxilium,  the  feudal  payment,  51, 
222,  228,  229  n.,  253  ff.;  from 
rear  vassals,  230  ff.;  of  London, 
225,  389  ff. 

Auxilium  civitatis,  393  ff. 

JJABON,  the  feudal,  in  the  opera- 
tion of  government,  70,  144  f.; 
his  courts  and  private  jurisdic- 
tion, 78  f.,  90  ff. 


Barons,  major  and  minor,  214  n., 
226  n.,  323  n.;  attitude  of,  to- 
wards changes  of  Henry  II.,  122, 
128  f.,  239  f.;  inconsistency  of, 
in  Magna  Carta,  128  f.,  233  f. 

Bath,  the  bishop  of,  1121;  trial  of 
a  case  under  a  royal  writ,  in 
his  court,  80  n.,  118  n. 

Becket,  Thomas,  69,  115;  form  of 
summons  to  great  council  at 
Northampton,  226  n. 

Bill  of  Rights,  the,  relation  of,  to 
Magna  Carta,  253,  309  n. 

Blackstone,  Sir  William,  relation 
of  the  king  to  law  in  his  Com- 
mentaries, 309  n. ;  on  precedents 
of  revolution,  312  f. 

Bracton,  Henry  de,  relation  of  the 
king  to  law  in  his  Treatise, 
309  n. 

Burgesses,  admitted  to  Parlia- 
ment, 329,  331. 

C  ABINET,  the,  origin  of,  342  ff.,  379. 
Carolingian  institutions,  7  ff.,  20  f . ; 

connection   with  Anglo-Norman, 

29  f.,  60,  81  n.,  86  n.,  96  f. 
Castle  guard,  238  f. 
Chancery   system,   the,  origination 

of,  in  curia  regis,  378  f. 
Charter,     Henry     I.'s     coronation, 

27  f.,  36  f.,  171,  217;  relation  to 

Magna  Carta,  176  f.,  247. 
Charter,    the    "unknown,"    172    n., 

221  n. 
Charter,   the    Great.      See    Magna 

Carta. 
Church,  the,  grant   to,  in  c.   1   of 

Magna  Carta,  211,  258. 
Circuits   of   counties,  first   formed 

in  Domesday  survey,  85. 


[401  ] 


INDEX 


Clarendon,  Assize  of,  38,  112  ff., 
194,  228  f. 

Clarendon,  Constitutions  of,  124  ff. 

Common  Pleas.  See  Court  of 
Common  Pleas. 

Commonalty,  the,  301  n. 

Commons,  House  of,  162;  as  not 
continuing  the  curia  regis,  315  n., 
377;  origin  of,  329  f. 

Commune,  the,  London  and,  385  ff. ; 
meaning  of  the  term,  385  f. 

Commune  concilium  regni,  and  the 
curia  regis,  193,  220  n.;  in 
clause  12  of  Magna  Carta,  222  f. 

Compurgation  procedure,  the, 
117  ff.,  263;  the  jury  substituted 
for,  in  criminal  trials,  119  f., 
268. 

Conquest,  the  Norman,  effect  of, 
4,  18  ff.,  30. 

Constitution,  English,  importance 
of,  1,  43;  idea  of  Saxon,  non- 
feudal  origin  of,  3  n. ;  Norman 
influence  upon,  16,  18  f. ;  origin 
of,  149  ff.,  275 ;  the  limited  mon- 
archy and,  2 ;  feudalism  and,  3  n., 
67  n.,  147  f.,  157  n. 

Contract,  in  feudalism,  150  f., 
169  ff.,  203  ff.,  232. 

Coram  rege,  139,  141,  271,  322. 

Council,  the,  137,  140,  142;  sum- 
mons to  the  great,  226 ;  in  Magna 
Carta,  226  ff. ;  a  parliamentary 
session  of,  142;  in  the  reign  of 
Henry  III.,  197,  202;  continuing 
the  curia  regis,  203. 
See  Curia  regis. 

Count,  the,  Prankish,  9  f.,  20,  72; 
of  the  Normans,  11,  20  f. 

Court  baron,  the,  age  of  origin  of, 
93. 

Court   of  Common  Pleas,  131   n., 


271;  origin  of,  136  ff.,  373  n.;  in 
Magna  Carta,  235. 

Court  of  King's  Bench,  138  ff.,  268. 

Courts,  American,  power  to  de- 
clare laws  unconstitutional,  42. 

Courts,  county,  Saxon,  6. 

Courts,  local,  380  ff.;  Prankish,  9, 
10;  Anglo-Norman,  92,  116  ff., 
192. 

See  County;  Hundred;  Shire 
court. 

Courts,  private,  90  ff.,  97  ff.,  264  f., 
382;  in  early  feudalism,  47  f. ;  in 
last  part  of  thirteenth  century, 
53,  292;  the  lord's  cases  in,  79, 
94  ff.,  100  f.;  in  Anglo-Norman 
feudalism,  192  f.;  in  c.  39  of 
Magna  Carta,  265. 
See  Jurisdiction,  private. 

Criminal  procedure,  in  the  Assize 
of  Clarendon,  115  ff.,  268;  in  the 
local  courts,  116  ff. 

Curia  regis,  Prankish,  10;  Anglo- 
Norman,  56  ff.,  193;  institutional 
basis  of,  57  f.,  193;  composition 
of,  61  ff.,  105,  227  n.;  procedure 
in,  64;  functions  of,  68  ff.,374f.; 
itinerant  justice  court  as,  130  f.; 
descent  of  its  functions,  142,  164, 
•373  ff.;  legislation  by,  164  f., 
194  ff.;  in  c.  14  of  Magna  Carta, 
226  ff.;  how  transformed  into 
Parliament,  315,  317;  differen- 
tiation of,  140  ff.,  373  ff. 

Curia  regis,  the  small,  62,  195  ff., 
375  ff.;  composition  of  and  rela- 
tion to  great  curia,  66  ff.,  164, 
375;  and  court  of  Common 
Pleas,  137  ff.;  legislation  by, 
194  ff. 

See  Court  of  Common  Pleas; 
Court  of  King's  Bench;  Exche- 
quer; Council. 


[402] 


INDEX 


IJeclaration  of  Independence,  the 
American,  relation  of,  to  Magna 
Carta,  253. 

Default  of  justice,  96,  99. 

Deposition  of  the  king,  181  n., 
299  f.;  in  Magna  Carta,  179; 
of  John,  184  n. 

Dienstrecht,  the,  94. 

Differentiation  of  feudal  into  mod- 
ern institutions,  63,  140  ff.,  201  f., 
373-379. 

Diffldatio,  the,  181  ff.,  306,  312. 

Distraint,  of  the  lord  of  a  court, 
96;  by  the  lord,  101  f. 

Domesday  Book,  feudalism  in, 
33  n.;  royal  ownership  of  land 
in,  38. 

Domesday  Survey,  84  f. 

EAHL,  the,  Saxon,  18;  Anglo-Nor- 
man, 19,  24. 

Edward  I.,  reign  of,  constitution- 
ally, 164,  307  f.;  and  the  forma- 
tion of  Parliament,  337. 

Edward  II.,  constitutional  char- 
acter of  his  reign,  159. 

Edward  III.,  Parliamentary  con- 
trol of  officers  of,  159  n.,  161  n., 
165. 

Election  of  the  king,  the  right  of, 
299  n. 

Errors,  a  court  of,  origin  of,  143. 

Exchequer,  the,  a  small  curia  regis, 
66  n.,  138,  141,  197,  271,  376,  378. 

FALAISE,  treaty  of,  187. 

Fealty,  Homage  and,  203  f. 

Perm,  the  county,  236  f. 

Peudalism,  Saxon,  17  f.,  44  ff.; 
development  of,  under  William 
II.,  35  f.;  under  Henry  I.,  27  f.; 
Henry  II.  and,  36  n.,  134  f., 


144  ff.;  Anglo-Norman,  30  ff., 
147  ff.,  186  ff.,  230;  in  thirteenth 
century,  53  f.,  91,  153,  292,  317; 
Norman  pre-Conquest,  31  f.; 
highest  period  in  England,  37  f.; 
Prankish,  47;  distinction  be- 
tween economic  and  political, 
50  ff.,  219  f.;  feudal  origin  of 
the  constitution,  3  n. ;  and  a  cen- 
tralized monarchy,  30  n.,  144  ff. ; 
as  machinery  of  government, 
60,  144  f. ;  logical  character  of 
English,  149,  186  ff. 

See    Law,    feudal;    Contract; 
Jurisdiction,  private. 

Financial  Revolution,  of  XII.  and 
XIII.  centuries,  236,  295. 

Fine,  the,  finalis  concordia,  130  n. 

France,  institutions  of,  similar  to 
England's,  150,  239  n.,  270. 

Prankish  institutions,  8  ff. 

See  Carolingian  institutions. 

Freeman,  the  common,  his  judicial 
position,  90  ff. 

See  Liberi  homines. 

Fustel  de  Coulanges,  Views  of,  on 
the  growth  of  the  manor,  48  ff. 

Fyrd,  the.  See  Levy,  general  mili- 
tary. 

GEORGE  III.,  and  Blackstone's 
Commentaries,  309  n. 

Oesta.  the  author  of  the,  his  techni- 
cal knowledge,  136. 

Glanvill,  Tractatus,  comment  on 
XII.  25,  96  ff.;  the  writ  in,  112  n. 

Glanvill,  Ralph  de,  decision  by, 
174  n. 

Goodwin  vs.  Fortescue,  166  n. 

Grosseteste,  Robert,  bishop  of  Lin- 
coln, 286  n.,  288  n.,  311  f. 


[403] 


INDEX 


HENRY  I.,  character  and  power 
as  king,  26  if.,  38,  106  n.;  coro- 
nation charter  of,  27  f.,  36  f., 
171,  176  f. ;  use  of  prerogative 
processes  under  88  f.,  Ill  n.; 
his  writ  concerning  local  courts, 
122,  380  ff. 

Henry  II.,  character  and  age  of, 
106  ff. ;  institutional  changes 
under,  109  ff.;  effect  of  the 
changes  under,  128  f.,  134  f., 
144  ff.,  269. 

Henry  III.,  Magna  Carta  in  his 
reign,  275-310;  character  of, 
280  ff.,  284  f.,  309;  financial  diffi- 
culties of,  280,  281  n.;  difference 
of  his  reign  from  John's,  289  ff. ; 
precedents  established  under, 
184  n.;  council  under,  197,  202; 
legislation  under,  199  ff. 

Homage,  as  creating  the  feudal 
contract,  203  ff. 

Household,  the  king's,  as  sharing 
in  government,  71. 

Hundred  court,  6,  117;  Henry  I.'s 
writ  concerning,  380  ff. ;  in  writ 
of  William  I.  on  ecclesiastical 
cases,  383  n. 

IMPEACHMENT,  154  n.,  165,  363  ff. 
Incrementum,   the,    from    counties 

and  manors,  237  n. 
Inheritance,  in  feudal  law,  215. 
Inquest  of  Sheriffs,  the,  73. 
Investiture,  lay,  23  n. 

JAMES  II.,  deposition  of,  299  n., 
313 ;  character  of  his  reign,  334. 

Jerusalem,  Kingdom  of,  feudalism 
of,  104  f.,  181  n.,  194. 

Jew,  the,  in  Magna  Carta,  260. 

John,  King,  his  power,  135,  151  f.; 


and  feudal  rights,  172  f.,  207-274; 
finances  of,  237,  295;  assemblies 
in  1213  under,  339  ff.;  and  a 
commune  of  London,  356  ff. ; 
tendency  in  his  reign,  147,  151, 
218;  homage  of,  to  the  pope, 
152  n. ;  alone  responsible,  291. 

Judicial  function  of  curia  regis,  69. 

Judicial  system.     See  Courts. 

Judicium  parium,  242  ff.,  263  ff. 

Jurisdiction,  private,  90  ff.,  192  f.; 
three  kinds,  78  f.,  93  f.;  attacked 
by  the  Assizes,  97  ff.,  120  ff., 
128  f.,  296  f.;  feudalism  and, 
47  f. 

See  Courts,  private. 

Jury,  the,  in  the  Domesday  sur- 
vey, 85  f.;  in  the  Carolingian 
age,  86  n.;  in  the  trial  of  cases, 
86  f.,  119  f.,  268  f.;  in  the  detec- 
tion of  crime,  115  ff. ;  in  the  as- 
sizes, 124  ff. ;  in  Magna  Carta, 
234;  and  the  origin  of  Parlia- 
ment, 322. 

Justice,  the  royal,  as  the  baron's 
peer,  63,  130  n.,  269  ff.;  in  the 
first  century,  83  ff.,  114;  under 
Henry  II.,  113  f.,  137  ff.;  in 
Magna  Carta,  234. 

Justices,  the  itinerant,  in  the  As- 
size of  Clarendon,  113  f. ;  as 
holding  a  curia  regis,  130  f.; 
functions  of,  131  ff.,  377  f.;  and 
court  of  Common  Pleas,  137  ff.; 
under  Henry  I.,  114,  383  ff.;  in 
the  XIII.  century,  134  n. 

KINO,  the,  as  suzerain,  23  n.,  35, 
38,  58 ;  in  the  curia  regis,  64 ;'  as 
source  of  justice,  98;  and  the 
protection  of  possession,  98,  103; 
deposition  of,  299  f.;  as  subject 


[404] 


INDEX 


to  the  law,  157  ff.,  162  f.,  169  n., 

250,  294,  310,  354  ff. 

See    Monarchy ;    Prerogative. 
King's     Bench,     court     of.       See 

Court  of  King's  Bench. 
Knight's  fee,  the,  52. 

LANCASTRIAN      period,      constitu- 
tional character  of,  157,  166. 
Lanfranc,    archbishop    of    Canter- 
bury, letter  to  William   I.,   189. 
Langton,    Stephen,    archbishop    of 

Canterbury,  176,  280,  288. 
Law,  feudal,  36  n.,  147  n.,  210  n.; 
the   suzerain   bound   by,   168   f., 
205  ff. 
Law,  public,  in  feudalism,  170,  206. 

See  Contract. 

Legislation,  development  of  Par- 
liament's control  of,  163  ff.; 
feudal,  194  ff. ;  see  Assizes; 
right  of  House  of  Commons  in, 
315  n. 

Levy,  the  general  military,  Anglo- 
Norman,  74,  190  f. 
Lewes,  Song  of,  the,  argument  for 

the  barons  in,  311  ff. 
Liberi  homines,   in   Magna   Carta, 
236,  264  f. 

See  Freemen. 

Liberty,  the,  55;  attacked  by  the 
Assize  of  Clarendon,  120  ff.;  the 
itinerant  justice  in,  128  n., 
382  f. 

London,  charter  of  William  I.  for, 
14  f.;  in  c.   12  of  Magna  Carta, 
225;  and  the  commune,  385. 
Lord,  the  feudal,  the  trial  of  his 
own  cases  in  his  court,  79,  94  ff., 
100  f.,  cf.  64;  bound  by  the  feu- 
dal law,  168  f. 
See  Rechtsgebot. 


Lords,  House  of,  as  continuing 
the  curia  regis,  203,  315  n.,  377. 

Lords  Ordainers,  the,  159  n.,  308. 

Louis  IX.,  of  France,  decision  of, 
on  the  Provisions  of  Oxford, 
245  n.,  260,  308  n. 

MAGNA  CARTA,  analysis  of  and 
comment  on,  207-274;  confirma- 
tions of,  160  n.,  279  f.,  282, 286  ff., 
289  n.,  307  f.;  relation  to  origin 
of  the  constitution,  167,  249  ff.; 
not  a  contract,  169  n. ;  nor  a 
treaty,  212  n.;  legally  just,  174, 
248;  clause  34,  97,  233,  239  f.; 
clause  61,  176  ff.,  247  f.,  275  ff., 
297  ff.,  305  f.;  feudal  in  charac- 
ter, 158  ff.,  210,  248;  clause  12, 
217  ff.,  223,  259  f.,  276  f.,  307  f., 
358  f.;  clause  39,  242  ff.,  259, 
262  ff.;  changes  made  in  the  re- 
issues of,  256  ff.;  clause  14, 
226  ff.,  276  f.;  in  the  reign  of 
Henry  III.,  275-310;  reissues  of, 
256  ff.,  275, 282  f . ;  as  reactionary, 
242  f.,  275,  283;  and  charter  of 
Henry  I.,  37  n.,  176  f.,  247. 

Manor,  the  Saxon,  46;  early  his- 
tory of  the,  48  ff.;  the  domain, 
52  f.;  position  of  the  freeman 
in,  91. 

Manorial  jurisdiction,  78,  92. 

Marriage,  the  feudal  right  of,  217, 
257. 

Marshal,  Richard,  insurrection  of, 
189,  190,  272,  287  f.,  289  n.,  303  n. 

Marshal,  William,  spirit  of  his  gov- 
ernment, 279. 

Merton,  statute  of,  c.  8,  199. 

Monarchy,  Saxon,  4  f.,  17,  22; 
Frankish,  8  f.,  20,  29;  Anglo- 
Norman,  17,  20  ff.,  58  ff.,  98, 
134  f.,  144  ff.,  171;  Capetian,  21; 


[405] 


INDEX 


the  English  limited,  2,  41  ff.,  108, 
152,  156  ff.,  178,  185,  250  f. 
Montfort,  Simon  de,  earl  of  Leices- 
ter, reluctant  to  accept  Provi- 
sions of  Oxford,  302  n.,  303  n.; 
his  character,  303  f.;  source  of 
his  ideas,  311  f.;  summons  of 
Knights  to  Parliament,  324, 
328  f.;  his  Parliament  of  1265, 
328  ff. 

NATION,  idea  of  the,  16,  293,  301  n. 

Nisi  prius,  138  f. 

Norman   institutions,  7   ff.,   11   f., 

21  n.,  30;  union  with  Saxon,  13. 
Normandy,   size    and    importance, 

11,  21  f. 
Northampton,  the  Assize  of,  126  f. 

OATH.     See  Compurgation. 

Saxon,  of  man  to  lord,  44  ff.; 

the    coronation,    not    the    legal 

basis  of  Magna  Carta,  182  f. 
Odo,  bishop  of  Bayeux,  25,  69. 
Old  Testament,  the,  source  of  ideas 

of  the  monarchy,  58. 
Opposition,  formation  of  a  party 

of,  307  n. 
Ordeal,    the,    in    criminal    trials, 

119  f. 
Ordinance,    the,    as    distinguished 

from  statutes,  201,  315  n. 
Oswald,  Bishop,  letter  of,  44  f. 

PARLIAMENT,  relation  to  the 
growth  of  the  limited  monarchy, 
158  ff.,  180,  307  f.;  control  of 
ministers  by,  159  n.,  160  n.; 
growth  of  its  power,  160  n., 
162  ff.;  origin  of,  314  ff.,  339  ff.; 
of  1254,  317  ff.;  of  1261,  324  f.; 
of  1264,  326  ff.;  of  1265,  328  ff.; 
of  1295,  336  n.;  peculiarities  of 


the  English,  330  n. ;  in  the  period 
from  1265  to  1295,  335  ff.;  in 
clause  14  of  Magna  Carta,  226. 

Patrocinium,  the  Prankish,  45. 

Peer,  the  king's  justice  the  baron's, 
63,  130  n.,  269  ff.;  in  local  and 
private  courts,  92  f. 

Peers,  90;  trial  by,  92,  262  ff., 
289  n. 

See  Judicium  parium;  Justice, 
the  royal;  Magna  Carta,  c.  39. 

Petition  of  the  Barons,  the  (1258), 
97,  290  n. 

Petition  of  Right,  the,  relation  of, 
to  Magna  Carta,  252  f. 

Prerogative,  royal,  273;  in  first 
Anglo-Norman  century,  55  f\, 
58  ff.,  76  ff.;  in  XII.  century, 
29;  beginning  of  processes  of, 
in  Normandy,  89,  106  n.;  ap- 
plications of,  under  Henry  II., 
109  ff. 

Prerogative  judgments,  272  f. 

Primer  seisin,  not  in  Magna 
Carta,  215  n. 

Procedure,  14  n.,  64  ff.,  82,  94, 
140  f.,  268. 

Proficuum,  the,  from  counties, 
237  n. 

Protestation,  the,  of   1621,  212  n. 

Provisions  of  Oxford,  the,  157  n., 
160,  298  ff.,  301  n.,  303  n.,  304  ff. 

Provisions  of  Westminster,  the, 
292  n.,  304. 

Purveyance,  the  right  of,  in 
Magna  Carta,  238, 

^echtsgebot,  the,  64  n.,  131  n., 
201. 

Record  by  four  Knights,  the,  as 
furnishing  the  suggestion  of  par- 
liamentary representation,  320  ff. 

Relief,  the  feudal,  51,  213  ff. 


[406] 


INDEX 


Representation,  the  idea  of  par- 
liamentary, 319  f.,  335  n. 

Revenue,  from  the  counties,  236  f.; 
feudal,  219  f.,  255  ff. 

Richard  I.,  135,  387;  tendency  in 
his  reign,  147,  151,  218  n. ;  and 
a  commune  of  London,  387. 

Richard  II.,  constitutional  char- 
acter of  his  reign,  159,  161  n., 
165,  332  f.;  deposition  of,  299  n., 
309  n. 

Richard,  earl  of  Cornwall,  brother 
of  Henry  III.,  284  f.,  302  f. 

Richard,  duke  of  York,  claim  to 
the  throne,  167. 

Roturier,  the,  93. 

or.  ALBANS,  the  assemblies  at,  in 
1213,  339  if. 

Saladin  tithe,  the,  218  n.,  228  n. 

Salisbury  Oath,  the,  186  f. 

Saxon  institutions,  4  ff . ;  union  with 
Norman,  13 ;  local,  after  the  Con- 
quest, 19. 

Scutage,  39,  92,  128  n.,  218  n.;  in 
Magna  Carta,  221  ff.,  238  f. 

Serf,  the,  position  in  manorial 
courts,  92. 

Serjeanty  tenure,  the,  63  n.,  241  f. 

Sheriff,  the,  Saxon,  5;  Anglo-Nor- 
man, 19,  72  ff.,  83;  as  king's 
commissioner  or  justice,  80  n., 
234,  384;  in  the  Assize  of  Clar- 
endon, 113  f.,  120;  inquest  of 
sheriffs  in  1258,  323;  supervised 
by  the  itinerant  justices,  132  f. 

Shire  court,  Saxon,  6;  the  bishop 
in,  383.  See  Courts,  county. 

Sovereignty,  of  the  people,  in 
Anglo-Saxon  constitutions, 41  f.; 
transfer  of,  to  Parliament,  296  n. 

Star  Chamber,  court  of,  origin  in 
the  council,  378  f. 


Statutes.    See  Ordinance. 
Stephen,    King,    character    of    his 

reign,  28,  39. 
Stuart     age,     the,     constitutional 

character  of,  333  f.,  353  ff. 
Suit  of  court,  in  baronial  courts, 

292  n. 
Suzerain,   the    feudal.      See    Lord, 

feudal;  King,  the,  as  suzerain. 

-LALLAGE  of  domains,  255,  389  ff.; 
of  London,  389  ff. 

Taxation,  development  of  Parlia- 
ment's control  of,  163  f.,  308, 
315  n.;  feudalization  of.  191  f.; 
in  Magna  Carta,  217  ff.;  devel- 
opment of,  in  Anglo-Norman 
England,  218  n.;  under  Henry 
III.,  290. 

Treason,  guilt  of,  not  incurred  in 
regular  feudal  warfare,  181  f.; 
trials  for,  69. 

Tudor  age,  the,  constitutional  char- 
acter of,  333. 

UNITED  STATES,  Anglo-Saxon  con- 
stitution in,  41  f. 
Urteilfindung,  the,  64  n. 
Utrum,  the  assize,  125  f. 

V  ASSAL,  the,  position  in  feudalism, 

62  f.,  170,  187. 
Village  community,  existing  beside 

the  manor,  49  f. 
Viscount,  the,  Norman,  11  f.,  72  f. 

A^AR,  private,  in  Anglo-Norman 
feudalism,  187  ff. 

Wardship,  feudal,  216,  240  ff. 

William  I.,  attitude  as  conqueror, 
14  ff. ;  his  kingdom  and  govern- 
ment, 17,  21  f.,  24  f.;  and  feu- 
dalism, 34,  188;  use  of  preroga- 


[407] 


INDEX 


tive  processes  under,  84  f.,  88; 
separation  of  ecclesiastical  and 
lay  jurisdiction,  68,  383  f. 

William  II.,  and  Anselm,  23  n., 
70,  171  n.;  power  as  king,  25  f.; 
personal  character,  25;  and  feu- 
dalism, 35  f.,  171,  176,  214  n. 

William,  son  of  Henry  I.,  his  writ 
to  the  bishop  of  Bath,  80  n. ; 
homage  of,  to  Louis  VI.,  204. 

Witenagemot,  the,  6,  17,  57,  65. 

Writ,  the,  as  means  of  prerogative 
action,  76  ff.,  Ill;  the  Anglo- 
Saxon,  77,  81  n.;  as  permission 


to  use  the  royal  procedure,  87  f., 
129. 

Writ,  the,  of  cosinage,  233  n. 

Writ,  the,  of  right,  100  ff.;  in 
the  first  century,  78  ff. ;  under 
Henry  II.,  129. 

Writ  of  1254,  318  ff. 

Writ  Praecipe,  103  ff.,  233  n.;  in 
the  first  century,  80  ff. ;  its  Caro- 
lingian  origin,  81  n.,  96  f. ;  under 
Henry  II.,  129;  in  Magna  Carta, 
239  f.;  under  Henry  III.,  292; 
and  feudal  law,  173. 

Writs  of  execution,  272  f. 


[408] 


PRINTED    IN    THE    UNITED    STATES    OF    AMERICA 


Date  Due 

Hi*  i  s  ••?*  ' 

<  JHH  8  * 

' 

HOVJ2  §5* 

JfllV    6  1 

959 

Jf\N 

I   iqpq  p 

JHN    i 

Q  1Q7O 

vvn    x 

MAY  S 

v  I3lc 

1972  7 

Library  Bureau  Cat.  No.   1137 

UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


A     001  044  037     8 


